“The King of Bullsh*t News”
On April 24, 2015, BuzzFeed
News–the news arm of BuzzFeed Inc.,–posted an article entitled “The King of Bullsh*t News,” accusing a UK based news agency, Central
European News (CEN), and its founder, Michael Leidig, of selling bizarre,
sensational, misleading, and in some cases, blatantly false news stories to
media outlets throughout the world. Within the publication, BuzzFeed News
identified several stories it alleged CEN fabricated, some in part, and others
entirely. You’ve seen the story about
the contaminated sashimi, right? That was one such new story.
Before the publication
of “King of Bullsh*t News,” BuzzFeed reached out to Leidig for comment. He responded by asserting/alleging that the article’s
contents were defamatory and that he would initiate a lawsuit if Buzzfeed published the
article, which it did two days later. Plaintiffs,
Leidig & CEN, (hereafter “Leidig”) filed a libel
suit against BuzzFeed
(defendant) in a N.Y. federal court in January 2016.
Spoilation of Evidence
During the initial discovery period in 2016, Leidig produced over 400
documents lacking metadata, including PDFs and text files that Leidig and CEN
employees could have potentially manipulated.
CEN also disabled news websites after threatening BuzzFeed with
litigation and deleted the emails of two vital witnesses. The court compelled Leidig to provide a second
production of materials including the metadata with the added threat of
sanctions. BuzzFeed rejected the second document production. In a later deposition, a witness for Leidig
testified that they had “inadvertently changed or deleted the metadata” when
moving the files to a hard drive. In September
2017, BuzzFeed filed
sanctions motions against Leidig for the spoliation of evidence.
Conclusion
As noted from
our reading,
parties must preserve evidence relevant to pending or future litigation. Spoliation occurs “when
evidence is destroyed, significantly altered, or not preserved properly when
litigation is pending or reasonably foreseeable.” In this case, the
court considered whether sanctions for spoliation under Rule 37(e) were
appropriate, and found that although Leidig failed to take the appropriate
steps to preserve evidence, there was no “intent to deprive” BuzzFeed of the
documentation. Instead, the court
ordered sanctions against Leidig in part, limiting the documentation plaintiffs
could use as evidence to support their claim.
Do
you agree with the court’s analysis in this case regarding the sanctions for
e-Discovery violations under Rule 37(e)? Why or why not?
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ReplyDeleteThat was my initial reaction as well, and it is difficult to see how Leidig has a case anymore after the court sanction. As far as i know, the case is ongoing. It will be interesting to see how this all plays out in the future.
DeleteOpps--I interchanged the words defendant and plaintiff in my response at the start and then went back to doing it again at the end. I think I better correct that and enter my reply again--where is the reply editing tool on this blog? Another delete under my name and this time for user error! Jaclyn--thanks for the reply. I hope you understood what I wrote even with my defendant/plaintiff writing problem.
DeleteI understood you perfectly! :)
DeleteFrom my reading of the case, the issues revolved around producing preserved versions of the disabled websites, producing only screen shorts of the news stories, and producing electronically stored information with missing metadata. As a news organization I feel that Leidig has every responsibility to be “non-negligent” with your documentation. From reading the case alone it is hard to identify whether they purposely tampered with documentation to harm Buzzfeed’s case, or if they were just (like the court stated) “amateurish” with their record keeping.
ReplyDeleteI agreed with the final court in their opinion about allowing BuzzFeed to present evidence about the disabling of websites after the threat of litigation came up, and I also agreed with the ruling to prohibit the plaintiff from using the date in any documents due to the metadata modifications. As the current rule reads, I think the court made the right decision.
However... I do think that maybe the rule should be modified going forward. I do not think it is responsible for any news organization to have documentation kept negligently, with no heavy consequence what precedent is this setting?
It find it interesting that they would have (allegedly) accidentally deleted important evidence related to their own suit, but.. who knows.
DeleteI agree with the court's analysis of this case because Leidwig convinced the court that it was not his intent to destroy the electronically stored information. The court partially sanctioned him and gave him a little slap on the hand, which fulfilled some of the requirements of Rule 37(e).
ReplyDeleteSorry for all the deleted comments --technical difficulties!
ReplyDeleteIt’s difficult to determine whether I agree with the courts ruling. My initial reaction is the court could (or maybe should have) come down more harshly on the Leidwig. Leidwig took actions that deprived the other party of the information for use in the litigation (e.g., deleting websites, destruction of metadata). Did the court have "evidence" supporting Leidwig’s claim that the lost data was a result of negligence rather than intent to deprive an adverse party of evidence in some of these instances? It seems like “oops” is an excuse that could be easily exploited. Leidwig knew that there was a real potential for litigation against Buzzfeed when they sent the letter threatening a lawsuit (triggering the plaintiffs' obligation to preserve before the actual filing of the lawsuit that they initiated). I agree with the court's decision for the items that were still accessible via other means, but I’m not as convinced in the case of the metadata. We all know the perils of electronic data usage—especially when moving data from one place to another. The accidental loss of information that occurred when the Leidwig transferred the data to another device seems a fortuitous accident for their case. I would think that one would be under an obligation to take extreme security measures to prevent loss of data in these situations, and perhaps actions such as this were in place but failed. Alternatively, maybe the court felt Buzzfeed could easily prove what they needed to in court regarding the data losses, making this a sufficient remedy. Otherwise, that part of the courts ruling is something I would question—although, I don’t believe it goes against the requirements outlined in 37(e). Oops just seems like an easy out!
First, a quick aside:
ReplyDeleteThere's a neat tie-in between the case cited as precedent here (United States v. Gasperini) and our previous discussion of court reliance on information stored overseas (see II.1-2). Little by little, we can see the body of case law evolving in the leadup to the CLOUD Act.
Onto the matter at hand: I have an admitted bias about the outcome of the Buzzfeed case, because as an accountant I am an obsessive hoarder of documentation. When in doubt as to the relevance of a digital file or the legal necessity of a hardcopy original, I hang onto that stuff with mad tenacity. (I only archive work-related emails when Outlook threatens me with storage limits and send-receive sanctions.) So I find it laughable that a news organization would be less diligent in its records retention practices. Perhaps, though, I should not be surprised -- we have seen enough scandals in which hanging onto (for example) incriminating emails was enough to damn a candidate or high-ranking official. The natural inclination to cover one's tracks is understandable if not defensible.
Because of that, it is difficult to apply a good-faith interpretation to both parties' assertions. The court's ruling casts appropriate aspersions on each side; at minimum, Leidig et al failed to preserve at least one key email in its original form. (Having personally seen someone's attempt to doctor a forwarded message in their own interests, I agree with the holding that what plaintiffs were able to produce was insufficient.) The acknowledgment that Buzzfeed failed to provide sufficient evidence of other relevant spoilation seems only prudent.
I agree with the first sanction against Leidig et al, which basically says a date contained within a document cannot be enough to demonstrate that document's actual creation date. I also find myself in agreement with the second sanction, which includes a surprising departure from U.S. v. Gasperini -- the acknowledgment that, for these purposes, Buzzfeed Inc. may source data from archive.org ("The Wayback Machine") and it may be treated as admissible. The court prefaces the two sanctions as "necessary, and no more than necessary," further elaborating on its degree of restraint in the final two sentences in II.C:
"This ruling may be inadequate to remedy all prejudice resulting from the spoliation of these websites to the extent the archive does not systematically preserve all former aspects of a website. Nevertheless, harsher sanctions risk falling outside of those permissible under Rule 37(e)(1) or being greater than necessary to remedy any resulting prejudice."
I find this degree of restraint persuasive, despite my incredulity at what I can only call a glaring lack of due diligence on the part of both plaintiff and defendant.
That's a great observation, and ties into the Goodyear v. Haeger opinion where the court examined whether lower courts may abuse their power when it comes to sanctions.
DeleteIn reading up on this it seems that the court fully expected CEN to produce all the documents requested, “including manually manipulated PDFs, summaries of underlying documents not produced, and screenshots and other text files generated by Plaintiffs after production of the Article," but did not include "any preserved copies of the now-disabled websites." https://www.leagle.com/decision/infdco20171220f86
ReplyDeleteThere was a Rule 30(b)(6) pre-motion conference, where topics for the subsequent deposition were disclosed. Leidig represented CEN in the Rule 30(b)(6) deposition, which requires a company to designate a representative to be deposed on behalf of that company. He was not well prepared, but prepared enough that the court found, based on Leidig’s deposition, that “While it is a close question, in the end we find that Leidig's Rule 30(b)(6) deposition is best characterized as "lacking in desired specificity in discrete areas," and thus is not sufficiently egregious to warrant sanctions.” Link
Federal Rule of Civil Procedure 37(e)(1) permits the imposition of sanctions only when there is "prejudice to another party from loss of the information." The limitations placed on the use of the existing evidence and the presentation Buzzfeed could make to the jury, consistent with the sanctions, seems to accomplish the objectives of Rule 37. I’d say based on how the rule reads the motion being granted in part and denied in part is a consistent with “Rule 37(e)(1) authorizes this Court to "order measures no greater than necessary to cure the prejudice" Link
Martha & Erin, great insight as usual. I think this case brings into consideration the extent to which courts can, in fact, issue sanctions and, if so, to what extent.
DeleteArg! My links didn't work when I published. Here's what I've referenced above: https://www.leagle.com/decision/infdco20171220f86
ReplyDeleteFirst of all, the tittle of this case sounds like the behavior of Leidig during the discovery process rules of this litigation. At the beginning of this litigation BuzzFeed stated through a motion that plaintiffs were public figures and cannot prove constitutional malice by clear and convincing evidence as an answer to the complaint. Plaintiffs amended that “that they were not public figures”. The motion was denied and the court noted that the issue of whether plaintiffs were public figures was far from settle. This is a message to the defendants, plaintiffs starting playing their game in the process of this litigations. But also the court granted Buzzfeed permission to file a motion for spoliation of evidence. Here defendants could have been more careful to bring up a substantial foundation of spoliation of evidence during the litigation.
ReplyDeleteRule 3.4 (a) governs fairness to opposing party and counsel. (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. Leidig further testified that he was instructed by counsel to preserve evidence only after the lawsuit was filed. Under the Federal Rules, a party may subpoena and/or notice the deposition of a corporation through a “30(b)(6) deposition.” Rule 30(b)(6) provides: Notice or Subpoena Directed to an Organization. ... The persons designated must testify about information known or reasonably available to the organization. Here again Buzzfeed needed to use a different strategy to apply this rule for a strong evidence in the litigation. On the other hand Rule 3.4 (d) states the ethics rules that lawyers shall not make a frivolous discovery request or to fail to make a reasonably diligent efforts to comply with a legally property discovery request by an opposing party. Both parties failed to comply with this rule.
Plaintiffs applied rule 26 (b)(5) on their advantage, …the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Plantiffs’ lawyers really knew what they were doing. They also applied the Fifth amendment of the constitution in their behalf.
In reality Buzzfeed did not have physical evidence or a strong witness to prove their case as stated on Rule 26 (a)(2) (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment. There is no evidence that defendants applied this rule on their advantage.
Also under federal rule evidence Original Rule 702 provided: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or ...
As Leidig said, the court applied “What you see is what you have” Rule 37 (e) (A) presume that the lost information was unfavorable to the party; this rule sounds really good for a concluded judgment. Whether to agree or not with the court’s analysis I would said there was much to do from the defendant’s side. The court’s decision laid in part the evidence brought to the case.
I don’t agree with the courts on moral grounds but I do agree with them on interpretation of Rule 37. Leidig appears to have had an impact that deprived BuzzFeed from receiving the information but it is difficult to say that was the intent as well. In my heart I believe Leidig is a BS artist that sought a way to provide enough data to act as though he is complying without giving any self-incriminating items. When called on that behavior, the court compelled a second production trying to give Leidig the ability to right a previous wrong. Leidig instead resorted to the dog ate my homework or in modern day terms, “inadvertently changed or deleted the metadata.”
ReplyDeleteThat may be what I feel but it is not what I believe can prove after reading the case. This is a tough one to prove without an employee or Leidig saying, “yes, I did delete and provide redacted data with the intent to deceive BuzzFeed.” The minor reprimand he received may be a way of the court telling him they too believe he is being deceitful but it cannot be proven under all aspects of Rule 37e
Great case, Jaclyn. This is very relevant to some who may wish to cry “Fake News,” on legitimate news and “brilliant journalism,” on tabloid trash.
Absolutely. Cry all you want, but don't file suit unless you are ready for the discovery process. ;)
DeleteRecords management is underappreciated these days and the consequences are rapidly catching up. One of the problems is that authenticating documents is difficult, especially given the ease in which documents can be changed and manipulated. Emails are a special challenge. I have been watching a number of webinars for my CRA accreditation and they all mention that the appropriate way to store emails is to keep a copy of the email, not a PDF or printout version. This is because the metadata and attachments cannot be accurately or usebly preserved in these other formats.
ReplyDeleteI'm not sure what to think in Leidig as it is easy to corrupt electronic data when it is transferred but it is also just as easy to modify it. My firm is handling a breach of contract case that involves CAD and GBR files that my firm does not have the software to access. One of our big challenges was figuring out how to produce these documents. Changing the file structure and renaming each file to assign a bates number was too cumbersome and risked destroying how the files interacted with one another. In the end, we kept the files as is and converted the Word, TXT, PowerPoint, and Excel documents to PDF and then bates stamped all of the PDF documents. Everything left over was assigned a single bates number and the file structure was maintained so as to limit tampering.
This sounds pretty complicated! The amount of work your firm went through to produce files with the appropriate metadata makes me believe even more strongly that CEN was not properly preserving their ESI. There doesn't seem to have been a decent trail of effort on Leidig's behalf, but there could be a lot to this story that we're possibly missing.
DeletePeter! It sounds like you're speaking another language. Has your firm ever hired out a company to manage this data, like what we learned about in the readings?
DeleteI agree with the court’s analysis in the case regarding Rule 37(e) . The rule states that the court “only upon finding that the party acted with the intent to deprive another party of the information’s use may:
ReplyDeleteA) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment
While it is very convenient for Leidig that the metadata was “inadvertently changed or deleted” the plaintiff would have to prove this was done intentionally. Without someone coming forward and testifying they were told to alter this data, intent in this case is difficult to prove. The court ordered the only remedy available to them under the Rule.
I also agree with your assessment and I would assume that most cases which involve the spoilation of evidence would fall into the gray area between finding prejudice to one party yet not being able to prove the other party acted "with the intent to deprive another party of the information's use in the litigation." I was surprised to read in the White Paper on ESI preservation that "Numerous parties have proved the 'intent to deprive' in seeking sanctions." I would like to see the numbers on how often intent is actually proven in related cases.
DeleteObviously, I’m not a lawyer but I completely disagree with the court’s analysis regarding the sanctions imposed under Rule 37(e). How in the world can a party disable websites relevant to the lawsuit (that they filed!) and produce ESI with metadata that was dated after the complaint was filed and have it not be seen as intentionally failing to preserve or provide evidence??? If not to conceal information that would be detrimental to the plaintiff’s case, what is the purpose of producing screenshots of information in lieu of original information AND what is the purpose of providing a forwarded email in lieu of the original? If the court determined the plaintiff was negligent, it is wild to me that the court did not agree that Leidig et al had the intent to conceal, manipulate, or deprive Buzzfeed of relevant information.
ReplyDeleteWhich leads me to my issue with Rule 37(e): How can you prove prejudice from loss of information if the information (in its original and complete form) cannot be reviewed to determine its relevance or impact?! If it can’t be reviewed, then how is intent to deprive the opposition of the information to be determined? Is there a way someone smarter than me can create a test that determines whether the loss of information is outside of the party’s control? Or that the information was lost based on objective standards (e.g., company policy since 1996 states that all financial records older than 20 years are deleted and not to be stored, without a litigation hold, to ensure the software system is easily and quickly searchable for updated and relevant information)? If the party has full control over the lost information but the information is lost years before litigation ensues or without reasonable knowledge that litigation might occur, should they be less responsible for the loss? If the reverse is true (i.e., there was knowledge a suit could be filed and the information is manipulated or lost during the time a party should have known a lawsuit was possible) it should be assumed to be prejudicial, right? What am I missing?
Perhaps I’m being overly judgmental because, like Erin, I work in an industry where keeping documentation is imperative, and not just because I have a terrible memory! It seems odd to me, in this specific case, that a news agency would not want to maintain documentation that supports their articles have some legitimate factual basis to protect them from defamation claims. I wonder if Professor Dryer has some good examples of when it has benefited a party, by general practice, to not maintain documentation…
Right there with you. Fishy, fishy, fishy (and not just about the super gross sushi story). I've been reading a lot about EDiscovery and it applies here. You can retrieve almost anything even if you think you've deleted the files. Clearing your history or website data (as we all know) isn't enough; you can always find the files. I guess my question is why didn't Buzzfeed demand that Leidig hire a foresenic computer expert? https://corporate.findlaw.com/litigation-disputes/delete-at-your-peril-preserving-electronic-evidence-during-the.html
DeleteThis is an interesting case and after reading further into it, I believe that a motion for summary judgement could have been made. A motion for summary judgment (sometimes called an “MSJ”) is a request for the court to rule that the other party has no case, because there are no facts at issue. The party making the motion is claiming that either the case should not go before a jury at all, or a jury could only rule in favor of the moving party. One witness was able to confirm that Leidig had testified that they (Buzzfeed) had “inadvertently changed or deleted the metadata” when moving the files to a hard drive. Understanding that witness evidence is difficult to prove, I still believe a motion could have been filed. Hopefully in the discovery phase of this lawsuit, the plaintiff's attorney would find correct, un-tampered with documents and even be able to gather more evidence to prevent this case from going to trial.
ReplyDeleteGreat job! This is a great case to illustrate the concept of spoliation of evidence and the challenge courts have in fashioning an appropriate remedy, given the revised rule's requirement to show the spoliation was intentional before imposing serious sanctions. You never answered your own question, however. Now that you have the benefit of the thinking of your classmates, do you agree or disagree with the Court's ruling? COME TO CLASS PREPARED TO ANSWER THAT QUESTION.
ReplyDeleteOk :)
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