Electronic discovery has traditionally been a precursor to deciding a case on the merits – a procedural consideration before getting to the substantive issues of the matter. But, what about when e-discovery decides the case? As communication has become increasingly more digital and more mobile, electronic discovery has become not only a critical factor – but the deciding factor – in some cases. One of those cases is Commonwealth v. Fowler, a criminal prosecution, and a related civil action, Little v. Fowler, stem from allegations against Kevin Spacey, whose legal name is Kevin Spacey Fowler. Earlier this month, the Massachusetts civil action was dismissed with prejudice, and prosecutors dropped the criminal charges. Why? E-discovery. More specifically, the alleged spoliation of mobile evidence and – as a result – William Little invoking his Fifth Amendment protections against self-incrimination.
This article it’s the story of what may happen in legal proceedings if your mobile data and mobile phone disappear. As we remember, both a criminal prosecution and a civil action ensued against Kevin Spacey after Nantucket facts. In what is now a common practice in legal proceedings, Spacey’s lawyers demanded discovery of the employee’s mobile phone, seeking text, video and Snapchat data from the date of the incident to the date of the discovery request.
What happened in court
In a development indicative of 21st century litigation, the case turned – not on the alleged facts of the July 2016 incident – but on a July 2019 court hearing on the whereabouts and contents of the employee’s mobile phone. Some of the employee’s mobile data had been introduced in court. For instance, text messages between the employee and his girlfriend – purported to have been sent at the time of the alleged incident – were entered into the court record via screenshots. They included descriptions of the alleged incident by the employee and text responses from his girlfriend, including some with multiple emojis.
Kevin Spacey’s defense counsel, Alan Jackson, argued that some of the text messages had been edited. The employee’s mother, Heather Unruh, admitted that she had deleted some data from the phone before turning it over to law enforcement – although she claimed the data she deleted was unrelated to the alleged incident. It was merely some “frat boy activities,” an investigating police officer told the court the mother had said. In admitting in court that she had deleted data from the phone before turning it over to law enforcement, Unruh said:
Yes, and I was very honest with the police about that.
Jackson was unimpressed with the mother’s professed honesty and he asked her:
You were not the gatekeeper. The police were the gatekeeper, and God forbid, we might be the gatekeeper or the judge may be the gatekeeper. You understand that, right?
I’m beginning to understand that now.
However, the biggest issue may have been the disappearance of the phone itself. Although law enforcement notes indicated the mobile phone had been returned to the employee’s family, Mitchell Garabedian of the Law Offices of Mitchell Garabedian, the family’s attorney, known for representing sexual abuse plaintiffs, told the court, “My clients do not recall ever receiving the phone”. Although the employee’s family said the phone had been backed up, Kevin Spacey’s counsel argued that wasn’t good enough. Alan Jackson argued:
We’re entitled to the phone, and I appreciate Mr. Garabedian’s efforts to maintain or obtain a forensic download of a MacBook, another phone, a second generation phone, a third generation or a fourth generation – none of that answers the central question: Where is the actual phone? That’s what we want, that’s what we’re entitled to, and we still don’t have it.
No one wants that phone more than we do.
Well, I beg to differ.
When Jackson asked William Little whether he knew altering evidence was a crime, he invoked his Fifth Amendment protection against self-incrimination, and the prosecution’s case was doomed. Prosecutors filed a nolle prosequi, dropping the charges on July 17, 2019, while Little’s civil suit had already been dropped on July 5.
Why the Kevin Spacey cases matter
Commonwealth v. Fowler and Little v. Fowler provide a roadmap for many matters in the world of 21st century litigation. Were the cases decided on the nuances of arcane legal doctrines, battling experts, or the preponderance of paper pleadings? No. It all came down to a missing mobile phone. And, it’s not just the Kevin Spacey cases either. Shahaf Rozanski, Head of Business Solutions, said:
Our customers are telling us that 50 percent of their cases involve capturing and examining mobile device data as part of their legal investigations. The Spacey cases are also interesting because they represent the intersection of civil and criminal law—and the rules of the ballgame are not the same. For instance, in the criminal matter, Kevin Spacey’s defense argued the employee’s ability to produce the data from the missing phone from other sources was irrelevant.
However, that argument may not have carried the day in a civil action. In the 2015 amendments to the U.S. Federal Rules of Civil Procedure (FRCP), rulemakers amended FRCP Rule 37(e) to provide that sanctions were available when evidence “cannot be restored or replaced through additional discovery.
Another notable factor was the use of emojis in text messages. The graphical 21st century version of the text-based emoticons, emojis are important in e-discovery, and their use in business communications is growing. Finally, social media became another factor in the case with Snapchat video becoming a point of contention. The biggest takeaway from the Kevin Spacey cases? It’s a Brave New World for e-discovery and the law – where cases are decided by missing mobile phones – and their texts, Snapchats, and emojis.