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Pennsylvania Court Addresses ESI Issues Under Right to Know Law

Posted on February 20th, 2015

In the Pennsylvania state court case Paint Township v. Clark, No. 2113 C.D. 2013 (Pa. Comm. Ct. Feb. 5, 2015), Plaintiff Paint Township (“Township”) appealed a trial court’s order directing it to produce cell phone records from two public officials of the Township’s Board of Supervisors under Pennsylvania’s Right to Know Law (RTKL).

Mr. Robert Clark (“Requester”) sought information about the cell phone records of the Township’s chairman and supervisor, including the cell phone contract, cell phone bills, the content of application-related data, and the content of all text, picture, and video messages. The trial court entered an order directing the Township to produce the requested ESI. The Township then filed a notarized affidavit claiming that the ESI could not be retrieved from the provider and was no longer in its custody or control. At a hearing, the representative from the Township testified that the Supervisor deleted all the data on his phone and reset it to its original factory settings under the directive of the Board and before Requester made his RTKL request. The Township stated that it had the phone but it had no data on it and that the Supervisor now had a private cell phone contract for work that the Township reimbursed him for monthly.

The trial court observed that simply because cell phone data had been deleted did not mean that a forensic examination could not retrieve data and/or metadata about the data. Accordingly, the trial court ordered the Township to have the phone undergo an expert forensic examination and produce any retrievable ESI, including metadata. The court also ordered the Township to produce the Supervisor’s private cell phone records to the extent they contained Township business.

The Township appealed the order, arguing that the trial court erred in: (1) directing the disclosure of metadata because Requester had not expressly asked for it; (2) requiring the Township to retrieve information from the publicly-funded cell phone when the evidence established that the data no longer existed; and, (3) in compelling the production of cell phone records from the Supervisor’s private line.

The appellate court vacated the order in part and affirmed it in part. The court agreed with the Township that the record had demonstrated that all ESI had been deleted from the phone. In considering whether to uphold the order for a forensic examination, the court concluded that “there is a dramatic difference between drawing information known to exist from a computer database” versus trying to get data that “does not exist in any ascertainable format.” Based on that reasoning, the court vacated the trial court’s order directing the Township to hire a forensic examiner. It did, however, remand the issue back to the trial court for further proceedings on the issue with the appellate court’s view in mind. Notably, in dicta, the appellate court disregarded the Township’s argument that it did not have to produce metadata because the Requester had not expressly requested it, stating that “metadata is inseparable from ESI” and “must be disclosed along with an ESI document.”

With respect to whether the Township must produce records regarding the Township’s business from the private phone of the supervisor, the appeals court affirmed the trial court’s order, stating that “[p]eople in positions of public power cannot hide from constituents by simply ‘privatizing’ their communications.”  The phone records between the Supervisor regarding Township business constitute a public record and must be produced regardless of whether the phone is under a “private” contract, the court concluded.

ILS – Plaintiff eDiscovery Experts

Text messages are a hot topic in eDiscovery case law, and ILS’s blog has written extensively about the topic.  In fact, ILS just devoted its monthly newsletter to surveying recent case law involving text messages and plaintiff eDiscovery.

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