Patel v. Havana Bar (E.D. Pa. Dec. 5, 2011) breaks no new ground in e-discovery, but it makes for interesting reading on several fronts.  First, it’s a prosaic personal injury case brought by a bar patron who suffered a severe fall, either because he was sober and the bar was negligent, or because he was wasted and the bar was negligent.  The plaintiff is uncertain of his sobriety, but he’s positive the bar was negligent.  The plain vanilla context is a reminder that the obligation of e-discovery competence runs to all counsel, even those who handle the bread-and-butter stuff that fills the dockets.  Second, the case presents dueling spoliation claims and bilateral sanctions.  Everyone gets slapped down!  Finally, the e-evidence at issue–FaceBook postings and video imagery–is a welcome respite from the usual squabbling over e-mail, and points up the variety of ESI that must be considered in setting a proper scope of preservation.

The plaintiff, Yogesh Patel, was at an engagement party held at the Havana Bar in New Hope, Pennsylvania.  The Havana is a live music venue in Bucks County, and has  loft-style second floor with a steel railing overlooking the dance floor (see photo).  On September 8, 2007, Yogesh, who his sister-in-law describes as “a hyper guy who acts all wild and crazy,” took a header off the balcony in full compliance with the laws of gravity and was severely injured.  Whether Yog was “practically wasted and…doing acrobatics when he fell” or the temperate victim of a hazardous condition at the bar is hotly disputed.  Or, at least Yog’s blood alcohol level started out hotly disputed.  A year after the fall, Yog’s sister-in-law, Sruti Patel, reached out to guests at the party via that venerated Engine of Truth, Facebook.  She wrote:

… Yog and my Dad had a sit down with the lawyer yesterday …. The lawyer is pretty positive about the case, but now he needs a little help from all of us. He has basically asked for a list of names and contact info from each of Yog’s friends that were present that night and that would be willing to testify on his behalf. Before having to testify he is asking that each of you provide a brief statement on your account of the night and a little bit more info on the Yogi that you all know.

He’s basically saying that the police report doesn’t really paint a wonderful picture considering the police interviewed no one that was with us or around us the whole night. As we all know, or most of us at least, the reports that were taken all basically said that Yog was practically wasted and was doing acrobatics when he fell, which we all know is complete BS!

Anyway the lawyer would like for us to gather statements that paint a more realistic picture of who Yog is and how he always acts at parties whether he’s drunk or not because at the end of the day we all know Yog. He’s an entertainer, a hyper guy who acts all wild and crazy without being drunk cause that’s just the type of guy he is, which we all know is completely true! So I’m just trying to get everyone to write up something talking about what little or lot they did see that night and then make mention of the fact that yes Yog may have been running around acting crazy and to a stranger he may have seemed drunk, which is the people interviewed by the police made those statements, but people who know him know that he’s just a crazy kind of guy and the way he was acting was no reflection of him being wasted that night.
We’re not asking for anyone to lie or give false accounts of the night or Yog in general. We’re just asking that everyone give accurate accounts of the night because we all know he drank, but we all also know he did not drink enough to be wasted by that point and we all know that the kid is always acting crazy even when he’s sober because he just loves being the life of the party.

Anyway, pass this along to whomever I didn’t include on this email and within the next two-three weeks get back to me with your statement and contact information so that if and when the lawyer must contact you he has a means to do so.

The lawyer is also going to be placing this case into motion with the court within 8 weeks so we should have all the info we need by then and keep those fingers crossed!”

All that finger crossing did the trick, because eight or ten statements rolled in. We don’t know exactly how many because every one of them disappeared, and none were ever produced.

Cynics might wonder if their disappearance had something to do with the plaintiff’s strategic turnabout two years later, when the same helpful sister-in-law offered this Facebook posting to the other guests on August 21, 2010:

There is one slight change in direction in terms of how the lawyer is approaching the case. We are now trying to collect statements that would indicate that Yog had too much to drink in order to shed some light on the fact that the bartender recklessly continued to serve him drinks despite the fact that he was visibly intoxicated. All statements that accuse him of jumping will not be included in this collection of statements because that claim is edging on the side of being outlandish so if that’s what you think happened please don’t send your statements along.

In your statements please include any info you have in terms of what time we reached the club … [and] how much Yog had to drink ….

At this point there’s about 5 statements collected by the police that night that claim Yog jumped and the lawyer stressed the importance of us collecting at least 10–12 statements from our friends that say he DID NOT jump, but he FELL OVER the railing.

If you still have the statements that you emailed to me almost a year or two ago please edit according to the new direction we’re going in and re-send those if you can.
… The lawyer has already told us that without these statements our case doesn’t stand much of a chance in court ….

I do not know if Ms. Patel knows the term, “chutzpah,” but her description of the situation as a “slight change of direction” entitles her picture to appear in the Yiddish dictionary alongside that wonderful word.  Despite her brass, Sruti must have loyal friends because this missive produced twenty more witness statements.  Sadly, four of these evaporated in the arid winds of e-discovery.  By December 8, they were nowhere to be found. 

I suspect that Judge Goldberg has heard of chutzpah because none of the audacity of these events was lost on him.  He found the plaintiff’s loss of the 2008 witness statements to be “clearly spoliation” and the belated production of the 2010 statements a violation of the plaintiff’s Rule 26 obligations.  His Honor reserved a few choice words for plaintiff’s counsel, calling his conduct “improper and contrary to the purpose of Rule 26 initial disclosures” and his arguments “frivolous and ridiculous.” 

The judge stopped short of kicking the case to the curb and denied the defendant’s somewhat overreaching demands to, inter alia, access all personal e-mail accounts maintained by Sruti Patel and Yogesh Patel, along with computers used by Plaintiff’s counsel and by Sruti Patel’s current and former employers.  Instead, the Court agreed to issue an adverse inference instruction, allowed five witnesses to be redeposed at plaintiff’s cost and provisionally ordered about $20,000 of the defendant’s attorneys fees and costs be borne by plaintiff.

But what’s sauce for the goose is sauce for the gander, and defendant Havana had some of its own ‘splainin’ to do, Lucy.  It seems the bar had a computerized video surveillance system that included three cameras covering the second floor.  It was a pretty nifty system, too, in that it superimposed drink sales onto the video and recorded continuously, keeping footage for three weeks before recording over the oldest images.

But this isn’t one of those cases where the anticipation of litigation was in dispute.  The club’s owner reviewed the video within hours of the fall and confirmed that it showed the plaintiff, though allegedly not the fall.  Here, again, it’s hard to say what the video showed because it wasn’t preserved.  The owner claims he intended to copy the video but couldn’t because he didn’t have the right equipment.  The owner acknowledged that the system could print still images; he just didn’t print any.  In the end, the owner got to see the footage, knew it needed to be preserved and let it be erased anyway.  It’s probably worth noting that the club’s manager told police the video system wasn’t working when they asked to see the footage on the night of the incident.

Judge Goldberg found that Defendants’ failure to preserve the video surveillance footage was spoliation and opted to give an adverse inference instruction for the destruction of the video surveillance footage.

One final point of note from this decision is the judge’s response to belated claims by plaintiff’s counsel that the eyewitness statements withheld from production were privileged as work product.  The judge saw through that artifice, adding,

Even if the work product privilege did somehow come into play, this privilege was belatedly raised, and documents were withheld without ever notifying Defense counsel. This type of discovery practice is directly contrary to FED. R. CIV. P. 26(b) (5), which requires a party who withholds information based on a claim of privilege to expressly raise that privilege and describe the nature of the withheld documents in a privilege log.

It’s a worthwhile reminder that you can’t withhold otherwise discoverable material on a claim of privilege without meeting the duty to expressly assert the privilege and log the items withheld.  It’s an obligation routinely given short shrift in e-discovery, especially with respect to redaction.

Patel v. Havana Bar, Restaurant & Catering, No. 10-1383, 2011 WL 6029983 (E.D. Pa. Dec. 5, 2011)