In Rivera v. Costco Wholesale Corp., No. 23-cv-1321 (MAJ)(HRV) (D.P.R. Jan. 24, 2025), Puerto Rico Magistrate Judge Hector L. Ramos-Vega denied the pro se plaintiff’s request for an independent forensic data expert “because it lacks merit”, after the plaintiff refused to accept defendant’s explanation regarding alleged discrepancies in the timestamps of some of the emails defendant produced that were due to the use of Coordinated Universal Time (UTC) for standardizing timestamps.

Case Discussion and Judge’s Ruling

This case involved claims of race discrimination based on an incident that took place at a Costco warehouse in San Juan, and retaliation because Costco terminated plaintiff’s membership after he denounced the incident. The Court had previously dismissed with prejudice several of Plaintiff’s claims leaving claims based on retaliation.

At the hearing on plaintiff’s motion to compel, held on December 6, 2024, plaintiff renewed his request for an independent forensic data expert alleging discrepancies in the timestamps of some of the emails produced by Costco as part of the discovery and Judge Ramos-Vega ordered Costco to file an informative motion clarifying the matter.

In its motion in compliance, Costco clarified that the timestamps in the emails that form part of its production of documents, are in Coordinated Universal Time (UTC) which is four hours ahead of Eastern Standard Time (EST). UTC, Costco further explained, is the time zone in which its eDiscovery experts would extract information, including employee emails. This fact accounted for the discrepancies flagged by the plaintiff where, for example, he claimed he sent an email to Costco submitting his complaint at 6:09am but the document produced by Costco had a timestamp reflecting 10:09am. Lastly, Costco clarified that timestamps in email threads could vary depending on the sender’s location.

As Judge Ramos-Vega stated: “Rivera does not agree with nor accepts this explanation. He continues to be of the view that the discrepancies in the timestamps are part of a scheme by Costco to deceive him and calls into question the accuracy of the documents produced in discovery. Based on that, he has filed the two virtually identical motions that the undersigned is addressing in this section. Both pleadings request the appointment of an independent forensic examiner ‘to create a forensic image of Defendant’s electronic systems and devices’ after following a 20-item search protocol…More recently, in his ‘Renew[ed] Opposition’, Rivera added a new theory. That Costco ‘did not withhold a document, it withheld the timely disclosure of the existence of different time zones for said documents.’…Rivera contends that the so-called parent emails needed to be ‘rightly’ identified with the time zone they belong to.”

Costco opposed the request on several grounds, including: plaintiff bypassed the “meet-and-confer” ordered by Judge Ramos-Vega, the request for an independent forensic examiner was meritless because the matter of the discrepancy in the timestamps was duly explained and plaintiff was not able to provide credible evidence that the explanation was misleading or inaccurate, and that the two motions were simply plaintiff’s newest attempt to harass Costco with meritless discovery motions.

Judge Ramos-Vega stated: “I agree with Costco that the request for the appointment of a forensic computer examiner must be denied because it lacks merit. To obtain the appointment of a ‘neutral’ expert in computer forensics, Plaintiff must offer more than speculation or conjecture—he needs to ‘present at least some reliable information that the opposing party’s representations are misleading or substantively inaccurate.’… Even the case cited by Rivera supports Costco’s argument and undermines his position. In that case, though the special master recommended the appointment of an independent forensic expert, it did so after finding that defendants had “left the Court with little choice” due to their conduct in the discovery process…Here, to the contrary, Rivera merely speculates that the discrepancy in timestamps must be due to some nefarious intent by Costco but provides no credible evidence of manipulation or fabrication. Costco in turn has provided a reasonable explanation for the discrepancy. It has to do with the different time zones that affected the timestamps reflected in the relevant emails…At the discovery hearing, Rivera had to admit that the copy of the email generated by him as sender, had the ‘correct’ time (6:09am) thus confirming Costco’s explanation.”

Judge Ramos-Vega added in denying the request for an independent forensic data expert: “Courts should be cautious to order intrusions into the electronic systems of a party, including mirror imaging of computers, where the request is unduly vague or unsubstantiated, and/or based on one party’s skepticism that the opposing party has not produced all relevant information.”

Judge Ramos-Vega also denied two other plaintiff motions as moot. He also granted Costco’s motion for sanctions in part against plaintiff for misconduct claims, including being belligerent and disrespectful toward counsel and harassing Costco with frivolous motions. Noting that “Rivera has also accused the presiding District Judge of misconduct and has left several pro bono attorneys appointed by the court with no choice but to move to withdraw due to disagreements with him”, Judge Ramos-Vega ordered the plaintiff to pay $1,000 to Costco instead of the $12,417.50 Costco requested.

So, what do you think? Are you surprised that the plaintiff still made a request for an independent forensic data expert after the timestamp explanation? Please share any comments you might have or if you’d like to know more about a particular topic.

Hat tip to Michael Berman for the original coverage of this case.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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