Vesta Halay Johnston v. Susan Halay Vincent

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-391

VESTA HALAY JOHNSTON, ET AL.

VERSUS

SUSAN HALAY VINCENT, ET AL.

**********

APPLICATION FOR SUPERVISORY WRIT OF REVIEW
FROM A JUDGMENT OF THE FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-4153
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Candyce G. Perret, Judges.

WRIT DENIED.

Rudie Ray Soileau, Jr.
Hunter William Lundy
Lundy, Lundy, Soileau & South
P. O. Box 3010
Lake Charles, LA 70602
Telephone: (337) 439-0707
COUNSEL FOR:
Defendants/Respondents - Susan Halay Vincent and Martin Bryan
Vincent

John Michael Veron
J. Rock Palermo, III
D’Ann R. Penner
Veron, Bice, Palermo & Wilson, LLC
721 Kirby Street
Lake Charles, LA 70601
Telephone: (337) 310-1600
COUNSEL FOR:
Plaintiffs/Applicants - Vesta Halay Johnston, Lake Charles Rubber and
Gasket Company, LLC

James David Cain, Jr.
Thomas Patrick LeBlanc
Loftin, Cain & LeBlanc, LLC
113 Dr. Michael DeBakey Drive
Lake Charles, LA 70601
Telephone: (337) 310-4300
COUNSEL FOR:
Defendants/Respondents - Gulf Coast Rubber & Gasket and Moby
Goodwin

THIBODEAUX, Chief Judge.

Vesta Halay Johnston and Lake Charles Rubber and Gasket Co.,

L.L.C. (LCR&G) filed suit against Susan Halay Vincent, Martin Bryan Vincent,

Moby Goodwin, and Gulf Coast Rubber and Gasket, L.L.C. (GCR&G) for

defamation and unfair trade practices. Shortly thereafter, the parties entered into a

consent judgment to preserve all of the companies’ electronic and digital data as

well as the parties’ smart phones (Preservation Order). Due to the defendants’

unsatisfactory responses to discovery, the plaintiffs’ filed a motion to comply

which the trial court granted (Production Order). The plaintiffs then filed their

motion for sanctions against defendants, alleging violations of the Production

Order. In their supplemental memorandum, the plaintiffs further alleged that the

defendants had violated the Preservation Order by failing to preserve an iPhone 4

that they claimed belonged to Mr. Vincent and was used by him at times relevant

to their suit. Taking the matter under advisement, the trial court subsequently

denied the motion for sanctions. After the trial court then denied their motion for

reconsideration, the plaintiffs sought writs from this court. Finding no manifest

error in the trial court’s factual conclusion that the plaintiffs failed to prove that the

defendants violated either discovery order, we deny the writ.

I.

ISSUES

The plaintiffs ask this court to decide:

(1) whether the trial court abused its discretion when it
denied sanctions under La.Code Civ.P. art. 1471;

(2) whether the trial court erred when it incorrectly
interpreted the Preservation Order and the
Production Order; and

(3) whether the trial court correctly applied the four-
factor test for sanctions under La.Code Civ.P. art.
1471.

II.

FACTS AND PROCEDURAL HISTORY

This family dispute involves LCR&G, a private, family-held business

started in 1957 by Michael Halay, the father of Mrs. Vincent, Mrs. Johnston, and

Kathryn Halay Heinen. In 1991, Mr. Halay promoted his son-in-law, Mr. Vincent,

to general manager of LCR&G and subsequently named him vice president.

Mr. Halay died in 2004, and his three daughters inherited his estate,

including LCR&G, in equal one-third shares. LCR&G was reorganized on June 2,

2005, and the three sisters became managing members. In November 2013, Mrs.

Vincent filed a shareholder derivative suit against Mrs. Johnston and Mrs. Heinen,

claiming that they were interfering with Mr. Vincent’s management of the

company. Mr. Vincent was later terminated from LCR&G on September 25, 2014.

That same month, Mrs. Vincent filed a petition to dissolve LCR&G, and the

company was put in receivership. The receivership was shortly dissolved, and the

trial court ordered formal mediation, which took place in October 2014. On

October 14, 2014, Mrs. Vincent sold her interest in LCR&G to her sisters for

$8,615,000. In early November 2014, the Vincents and Mr. Goodwin opened a

new, competing business—GCR&G—and allegedly hired eleven key employees

from LCR&G.

2

On October 14, 2015, Mrs. Johnston and LCR&G sued the

defendants, alleging that GCR&G and its principals had engaged in unfair trade

practices, breached their contractual and fiduciary duties, and defamed the

plaintiffs by, inter alia, taking the plaintiffs’ proprietary information, soliciting

customers, as well as employees, while still employed by the plaintiffs, and making

false public statements about the plaintiffs’ financial condition. In part, the

plaintiffs sought an expedited contradictory hearing to consider the issuance of an

order to preserve and quarantine electronic devices until their computer forensic

expert was allowed unimpeded access to copy all data and metadata. The

defendants, however, disagreed with the quarantine of their electronic devices.

Eventually, the parties agreed upon the Preservation Order at issue herein, and the

trial court signed a consent judgment on November 18, 2015, consistent with the

parties’ agreement.

The Preservation Order required both companies to create and

preserve a digital image of all data in an “accessible, usable form”:

IT IS ORDERED, ADJUDGED AND
DECREED that the parties have a duty to preserve
documents, information, data and other electronic or
digital communications or compilations of data which are
or may be relevant to issues in this litigation. This
includes any and all records, notes, memos, letters,
photographs, logs, e-mails, ledgers (whether on paper or
kept electronically or digitally) pertaining in any way to
the allegations of this lawsuit. This includes but certainly
is not limited to, any and all business records pertaining
the operations of [LCR&G] before October 14, 2015 and
to the operations of [GCR&G] from October 15, 2014.

....

IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that all parties agree to cease and
desist from any activities or acts the result of which
would inadvertently or intentionally result in the deletion

3

or destruction of materials which may be the subject of a
discovery request or may be potentially relevant.

It also required the parties to preserve all records and content pertinent to their

claims and defenses on their iPhones:

IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that the parties agree to take
appropriate measures to preserve and prevent from
deletion, destruction or alteration any and all records and
content pertinent to plaintiffs’ claims or defendants’
defenses in or on: (1) any and all work electronic mail
account(s) to which the parties have access; (2) any and
all personal electronic mail account(s) to which Vesta
Halay Johnston, Susan Vincent, Martin Bryan Vincent,
and Moby Goodwin have access; . . . (4) any and all
cellular telephones, smart phones, or iPhones used for
work by Vesta Halay Johnston, Susan Vincent, Martin
Bryan Vincent, and Moby Goodwin; (5) any and all
personal cellular telephones, smart phones, or iPhones of
Vesta Halay Johnston, Susan Vincent, Martin Bryan
Vincent, and Moby Goodwin[.]

GCR&G subsequently retained Kiersted Systems (Kiersted) in Houston, Texas, to

create and store its digital image database.

On December 10, 2015, plaintiffs filed their first set of requests for

production of documents. Relevant to the issues herein, the plaintiffs sought the

production of “all correspondence, emails, and texts messages between any and all

of the defendants and any and all employees of LCR&G between August 2014 to

December 2014.” 1 In response, defense counsel sent a correspondence to the

plaintiffs’ counsel, dated January 27, 2016, requesting that the plaintiffs provide a

list of former and current employees, as well as any other search terms that the

plaintiffs would like the defendants to use to search the image database. The

defendants referred to that correspondence in their response to the plaintiffs’

1
In their second set of requests for production, filed on July 21, 2016, the plaintiffs
extended the relevant timeframe back to August 2013.

4

requests. On March 3, 2016, the plaintiffs filed their first motion to compel,

arguing that they “should not have to produce a list of employees. Mr. Vincent has

the experience and the background to generate a list of his own.”

After hearing the matter, the trial court granted the motion and signed

the Production Order on April 6, 2016. Therein, the trial court ordered “the

defendants . . . to produce all correspondence, emails, and text messages between

any and all of the defendants and any and all employees of LCR&G . . . between

August 2014 and October 2014 without LCR&G producing a list of employees.”

But, “to the extent that the plaintiffs want GCR&G to produce correspondence,

emails, and text messages between any and all of the defendants and any and all

employees of LCR&G between November and December 2014, the plaintiffs must

first supply GCR&G with a list of said employees.”

The plaintiffs then filed their motion for sanctions on June 30, 2016,

arguing that “the defendants have refused to comply with this Court’s judgment.”

In their supporting memorandum, the plaintiffs complained (emphasis in original):

“To date, not one single email or text message has been produced by the

defendants in this litigation.” The matter was set for hearing on September 12,

2016.

On August 31, 2016, the plaintiffs conducted the La.Code Civ.P. art.

1442 deposition of GCR&G for which Mr. Vincent appeared as representative (the

1442 deposition). During this deposition, Mr. Vincent was specifically asked

about the preservation of an iPhone 4 that he allegedly purchased in February

2013. He explained that he “probably had a 4[,]” but he did not remember when

he bought it and did not know what had become of it. It was an iPhone 5 that he

used in the time period relevant to the motion to compel—August 2014 through

5

December 2014—and had been using since October 2013. That phone was backed

up on his home computer, which was imaged by Kiersted, when he upgraded to an

iPhone 6 in March or April 2015. Prior to this deposition, the defendants, through

Mr. Vincent, had produced text messages, some of which dated back to July 3,

2014, that were reproduced from the backup of Mr. Vincent’s iPhone 5 on his

personal computer.

In their reply memorandum of law in support of their motion for

sanctions, filed on September 8, 2016, the plaintiffs, for the first time, argued that

“Mr. Vincent’s failure to preserve the physical iPhone 4 and any backup he made

to his computer of the iPhone 4, if they existed on October 12, 2015, is a flagrant

and deliberate violation of the Preservation Order.” They also claimed that

“according to the plain language of the Preservation Order, all of the physical

iPhones, whether personal or work, from the years ‘pertinent to plaintiffs’ claims’,

were covered by the order. One of plaintiffs’ claims is that Mr. Vincent began

scheming to start a competing business to destroy Mrs. Johnston and LCR&G as

early as 2013.” In support of this claim, plaintiffs cited paragraph 14 of their

original petition in which they alleged: “Bryan and Moby began planning their

new venture, GCR&G, before it was formally incorporated on October 30, 2014.”

At the outset of the September 12, 2016 hearing, the plaintiffs again

advanced their complaint that the defendants had violated the Preservation Order

by not preserving the iPhone 4, and they produced a receipt that reflected the

purchase of an iPhone 4 from AT&T for the LCR&G phone number assigned to

Mr. Vincent on February 26, 2013. They also produced AT&T bills for LCR&G

from August and September 2013, which included the number assigned to Mr.

Vincent. However, the company’s AT&T bill from October 2013 showed that Mr.

6

Vincent’s number was no longer billed to LCR&G. The November 2013 bill

revealed the removal of Mrs. Vincent’s number as well from the company’s AT&T

account. From October 2, 2013, and November 2, 2013, respectively, both of the

Vincents’ numbers were billed by AT&T to Mr. Vincent’s personal account.

The testimony of the plaintiffs’ forensic expert, Brian Wilson, further

established that the direct imaging of an iPhone is the best method of preservation,

with the backup being “the only next best” way of preserving the iPhone’s data if

the phone is not available. “[T]he messages retrieved through an iTunes backup

would likely be the same text messages that you would received from a directly

connected iPhone.” Deleted texts are preserved on an iPhone as long as the

messages are on the phone, but over time the deleted messages are overwritten by

new data with a phone’s continued use. Also, the consumer has no way of

controlling what is backed up as it is subject to an Apple protocol, but all texts

messages on the phone, even deleted ones, are automatically backed up. If the data

on the iPhone is not captured and backed up before the device is used again,

however, the chance that it will retain the identical data after use is

“astronomically, no.” “[A] file inside the backup . . . tells you precisely when the

backup occurred.” Emails are protected and cannot be collected from the phone

for security reasons; “you would have to go to the source to get that e-mail.”

The deposition testimony of Fred Behning, the Kiersted employee

who actually imaged the defendants’ digital data, revealed that the defendants did

not turn over their smart phones to be directly imaged. Rather, only the computer

backups of the iPhones were imaged and preserved. This, the plaintiffs argued,

meant that evidence of the text messages was irretrievably lost. Mr. Vincent, in the

1442 deposition, had explained how, at the time of the imaging in November 2015,

7

he did know where his iPhone 5 was, as he had already upgraded to his iPhone 6

by that time. Therefore, only the backup was available. However, he later

discovered that his son had the iPhone 5, which Mr. Vincent then retrieved and

stored in his desk drawer at his office.

During closing arguments held on October 31, 2016, defense counsel

informed the trial court that the defendants were actually producing text messages

from the iPhone 5 dating back to October 2013, from the image harvested by

Kiersted. The trial court, after studying all the exhibits and its previous orders,

concluded that there was no violation of either the Preservation Order or the

Production Order. In its signed judgment, dated November 4, 2016, the trial court

found:

The evidence shows the Defendants have not responded
to discovery as effectively and efficient as the Plaintiffs,
but, legally, they are not in violation of any Court order.
The information at issue was subject to a preservation
order with which the Defendants are still in compliance.

The court also ordered the defendants “to follow the Plaintiffs’ model in producing

the correspondence, emails, and text messages” to “prevent any further discovery

delays.”

On November 14, 2016, the plaintiffs filed a motion for

reconsideration or rehearing of their motion for sanctions, arguing, relevant herein,

that:

the evidence is undisputed that the Defendants violated
the Court’s preservation order in . . . not presenting all
iPhones to Fred Behning for preservation and harvest. . . .

....

[And] ordering the Defendants to comply with discovery
now—after the evidence has been irretrievably lost—is a
vain and useless gesture. As Brian Wilson’s

8

uncontradicted expert testimony made clear, it is no
longer possible to retrieve the evidence the Court
previously ordered the Defendants to produce. As a
result of the Defendants’ failure to turn over their phones
and otherwise preserve the electronic evidence they were
ordered first to preserve and then to produce, it is
irretrievably lost. . . .

As the Plaintiffs attempted unsuccessfully to
explain at the closing arguments on October 31, 2016, the
only sanction that can remedy the Defendants’ failure to
comply with the Court’s orders on discovery is an order
of default. Anything less rewards the Defendants for
failing to preserve and produce the critical evidence that
would prove the Plaintiffs’ claims. (Emphasis in
original)(footnotes omitted).

The defendants opposed the motion and filed a motion to strike and/or

dismiss. The trial court denied the motion to strike after a hearing on January 12,

2017. During the hearing, the plaintiffs sought to admit exhibits reflecting

subsequent discovery activities and evidence that was not available at the time of

original hearing. In light of the defendants’ objection to the exhibits, the motion

for reconsideration was pretermitted until February 24, 2017, with the parties to

submit additional briefing on the exhibits. A second hearing was held on March

15, 2017, during which the trial court agreed that it was undisputed that Mr.

Vincent had an iPhone 4, but that “it’s also undisputed he had an iPhone 5 from

’14 on which was pre separation.” The trial court further questioned counsel as to

whether “we know” that it was in existence at the time of the preservation order, to

which plaintiffs’ counsel replied: “That’s a judgment call you’ve got to make.”

While remarking on the possibility of the iPhone 4’s existence, the trial court

found that “[t]here is no probability there.” Though the plaintiffs “have a lot of

circumstantial evidence[,]” the trial court ultimately concluded that they had not

9

carried their burden of proof. Accordingly, the trial court denied the motion for

reconsideration or rehearing, reasoning:

Just in summation, I believe while the plaintiffs’
argument is persuasive, I do not find that they have met
their burden. The court is going to note in its earlier
denial that the preservation order was a general, broad
order to protect information from being lost. There was
no specific protocols put in place; and I agree that the
defendants could have done a much better job; but what
they did, did not violate the order, at least is the way the
court reads it as having been rendered.

....

Specifically the arguments on reconsideration have
planted additional seeds that may or may not grow into
fruition. Until that can be established, the court will not
sanction the defendants.

....

The lost phone that cannot be accounted for also is just
[an allegation]. Nothing else has been established. . . .
Some have been substantiated with circumstantial
support but insufficient at this stage for the court to
sanction.

The court is looking at specific allegations and
violations and do[es] not find they are present and will
find for the defendants at this time.

....

Common sense dictates that while technical violations of
discovery may not be found here, one cannot help but
raise a questioned eye as to the operation, the credibility,
and the good-faith efforts to be forthcoming on all
matters by the defendants. And, in summary, too many
coincidences does not a good argument. . . .

I’m not going to say that you would be prohibited
from revisiting these areas as things may or may not be
discovered. There is other things that have been alluded
to that may bring forth that information; but at this stage,
I do not feel that I overcome my initial determination.

10

The trial court signed its judgment on March 19, 2017. The plaintiffs are now

before this court on writs seeking review of this ruling, denying their motion for

reconsideration or rehearing.

III.

TIMELINESS

As an initial matter, the defendants argue that the plaintiffs’ writ

application is not timely and should be dismissed. Because the Louisiana Code of

Civil Procedure does not provide for a motion to reconsider an interlocutory order,

the defendants argue that the motion for reconsideration filed herein did not

suspend the time for applying for supervisory writs. However, the trial court

allowed the motion for reconsideration or rehearing to go forward, with the

admission of two new exhibits and extensive arguments from both sides.

Thereafter, the trial court rendered a new judgment “from which [the plaintiffs]

could seek supervisory review from this court.” Indus. Pipe, Inc., v. Plaquemines

Par. Council, 12-1348, p. 7 (La.App. 4 Cir. 9/14/12), 100 So.3d 896, 900. Because

the plaintiffs’ writ application was received in this court within the time designated

by the trial court, we find that the writ is properly before us.

IV.

STANDARDS OF REVIEW

Our “discovery articles grant the trial court the power to compel

discovery and the discretion to impose various sanctions on a party or his attorney

for unjustified failure to comply with the statutory scheme or to obey an order

compelling discovery.” Garza v. Int’l Maint. Corp., 97-317, pp. 2-3 (La.App. 3

Cir. 10/29/97), 702 So.2d 1021, 1023. Given this wide discretion, a trial court’s

11

“ruling should not be reversed absent an abuse of discretion.” McWilliams v.

Exxon Mobil Corp., 12-1288, p. 5 (La.App. 3 Cir. 4/3/13), 111 So.3d 564, 570,

writ denied, 13-1402 (La. 11/8/13), 125 So.3d 451. Prior to imposing sanctions,

however, the trial court must first determine whether a party or his attorney has

failed “to comply with discovery orders.” Horton v. McCary, 93-2315, p. 5 (La.

4/11/94), 635 So.2d 199, 203. As a factual finding, this determination is subject to

the manifest error or clearly wrong standard of review. Rosell v. ESCO, 549 So.2d

840 (La.1989).

V.

LAW AND DISCUSSION

“A party to litigation may apply to a court for an order compelling

discovery when another party fails to answer properly propounded interrogatories

or requests for production. La.Code Civ.P. art. 1469(2).” Garza, 702 So.2d at

1023. Louisiana Code of Civil Procedure Article 1471 sets forth the sanctions

available for a party’s failure to comply with such an order:

A. If a party or an officer, director, or managing
agent of a party or a person designated under Article
1442 or 1448 to testify on behalf of a party fails to obey
an order to provide or permit discovery, including an
order made under Article 1464 or Article 1469, the court
in which the action is pending may make such orders in
regard to the failure as are just, and among others any of
the following:

(1) An order that the matters regarding which the
order was made or any other designated facts shall be
taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the
order.

(2) An order refusing to allow the disobedient
party to support or oppose designated claims or defenses,

12

or prohibiting him from introducing designated matters in
evidence.

(3) An order striking out pleadings or parts thereof,
or staying further proceedings until the order is obeyed,
or dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the
disobedient party.

(4) In lieu of any of the foregoing orders or in
addition thereto, an order treating as a contempt of court
the failure to obey any orders except an order to submit
to a physical or mental examination.

(5) Where a party has failed to comply with an
order under Article 1464, requiring him to produce
another for examination, such orders as are listed in
Subparagraphs (1), (2), and (3) of this Paragraph, unless
the party failing to comply shows that he is unable to
produce such person for examination.

B. Absent exceptional circumstances, a court may
not impose sanctions under this Article on a person or
party for failing to provide electronically stored
information lost as a result of the routine, good-faith
operation of an electronic information system.

C. In lieu of any of the foregoing orders or in
addition thereto, the court shall require the party failing
to obey the order or the attorney advising him or both to
pay the reasonable expenses, including attorney fees,
caused by the failure, unless the court finds that the
failure was substantially justified or that other
circumstances make an award of expenses unjust.

Interpreting the above provisions, our supreme court in Horton, 635 So.2d at 203

(citations omitted) (alterations in original), explained:

There is a distinction between the sanctions available for
failure to comply with discovery and the sanctions
available for disobedience of court ordered discovery.
Refusal to comply with court ordered discovery is a
serious matter. Trial judges must have severe sanctions
available to deter litigants from flouting discovery orders.

The Louisiana rule, like Federal Rule 37, allows
the trial court to sanction a disobedient party with
dismissal or a default judgment. Both dismissal and

13

default are draconian penalties which should be applied
only in extreme circumstances. Because the sanctions of
dismissal or default involve property rights, those
sanctions are generally reserved for the most culpable
conduct.

Federal district courts consider four factors before
granting a default judgment: (1) whether the violation
was willful or resulted from inability to comply; (2)
whether less drastic sanctions would be effective; (3)
whether the violations prejudiced the opposing party’s
trial preparation; and (4) whether the client participated
in the violation or simply misunderstood a court order or
innocently hired a derelict attorney.

Dismissal and default are generally reserved for
those cases in which the client, as well as the attorney, is
at fault. The record must support “a finding that the
failure was due to . . . willfulness, bad faith, or fault.”

Although the federal courts allow a final judgment
on the merits as a default sanction, at least one Louisiana
court has interpreted LSA-C.C.P. art. 1702 to require
proof of a prima facie case.

The party seeking sanctions bears the burden of proving, by a preponderance of the

evidence, a violation of the discovery order or breach of a duty imposed therein.

See Joyner v. Wear, 27,631 (La.App. 2 Cir. 12/6/95), 665 So.2d 634, writs denied,

96-40, 96-42 (La. 2/28/96), 668 So.2d 370 (burden of proof by a preponderance of

the evidence for imposition of sanctions for frivolous pleadings). It logically

follows, therefore, that the plaintiffs bore the initial burden of proving, by a

preponderance of the evidence, that the defendants failed to comply with the

Preservation Order and/or the Production Order.

In its denial of the plaintiffs’ motion for reconsideration or rehearing,

the trial court specifically found that the plaintiffs had not proven, by a probability

of the evidence, that the iPhone 4 even existed when the Preservation Order was

signed and so could not prove that the defendants had violated the discovery order

14

by failing to preserve it. The burden to provide a justifiable reason for their failure

to preserve the iPhone, therefore, never shifted to the defendants. Although the

plaintiffs now argue that the defendants had a duty to preserve the iPhone 4 from

the time Mrs. Vincent filed her initial shareholder derivative suit against her sisters

in November 2013, and that the trial court erred in failing to read the Preservation

Order as incorporating this continuing duty, the issue before the trial court was

whether the plaintiffs had proven, by a preponderance of the evidence, a violation

of the discovery orders as issued by the trial court. The issue presently before this

court is whether the trial court manifestly or clearly erred in finding that the

plaintiffs have not proven that the defendants violated either order.

After reviewing the evidence, we cannot say the trial court erred in its

finding. Relevant herein, the Preservation Order required the defendants “to take

appropriate measures to preserve and prevent from deletion, destruction or

alteration any and all records and content pertinent to plaintiffs’ claims or

defendants’ defenses in or on” their work or personal smart phones. The plaintiffs’

primary concern in seeking the Preservation Order as to the iPhones was the

destruction or deletion of pertinent text messages that could help prove their

claims. Along these lines, the trial court, in response to plaintiffs’ motion to

compel, ordered the defendants to produce all correspondence, emails, and text

messages between them and any employee of LCR&G from August 2014 through

October 2014.

As regards the iPhone 4, all the evidence shows is that Mr. Vincent

used an iPhone 4 in 2013 that was purchased by LCR&G, on February 26, 2013,

for the company phone number assigned to Mr. Vincent as reflected in the AT&T

receipt submitted by the plaintiffs. Mr. Vincent has always maintained, however,

15

that he upgraded to an iPhone 5 when he moved his phone number to his personal

account in October 2013. The AT&T bills submitted by the plaintiffs lend support

for this claim in that they reflect how the Vincents’ phone numbers were removed

from LCR&G’s account in October and November 2013. The undisputed

assertions made to the trial court regarding the production of text messages from

October 2013, harvested from the backup of Mr. Vincent’s iPhone 5 on his

personal computer, lend even further support for the defendants’ position. 2 In this

manner, all the text messages from August 2014 through October 2014 sought by

the plaintiffs in their motion to compel and ordered to be produced by the trial

court should have theoretically been preserved in the Kiersted image of the backup

of Mr. Vincent’s iPhone 5 taken in November 2015. As defense counsel explained

during his closing arguments on October 31, 2016, the defendants are producing, in

spreadsheet fashion, text messages from this time period and all the way back to

October 2013, from that image, albeit in a less than timely or forthcoming manner.

Moreover, the plaintiffs conceded in memorandum to the trial court

that the defendants’ failure to preserve the iPhone 4 violated the Preservation

Order, “if it existed on October 12, 2015.” But it was the plaintiffs who had to

prove that the iPhone 4, more probably than not, existed on that date and had not

been lost long before then, as the defendants have staunchly maintained. The

evidence, however, does reasonably show that they failed to prove either the

2
Prior to October 2013, the phone number and the phone associated with that number
belonged to LCR&G, and any messages archived by AT&T for that number up until that date
should legally be accessible by the company. During the 1442 deposition, plaintiffs’ counsel
explained how her “client has requested text messages from AT&T [] [t]o answer your discovery
requests [and] AT&T has agreed to send us those text messages. . . . They can . . . produce
things that have been deleted from the phone.” Counsel then informed the defendants that she
had a completed authorization form for them “limited by date from October 1st, 2013 through
December 31st, 2014.” The time-sensitive nature of such an authorization was also stressed.

16

existence of the iPhone 4 or its use by Mr. Vincent beyond the February 2013

receipt and the September 2013 AT&T bill, respectively.

Regardless, at this time the plaintiffs have not proven the irretrievable

loss of the text messages which, they argue, would warrant the imposition of the

sanctions sought. Rather, the undisputed assertions made to the trial court

demonstrate that the defendants are producing text messages back to October 2013.

All the messages exchanged prior to October 2013 were made from an LCR&G

phone on an LCR&G phone number issued by AT&T, which the plaintiffs should

have the authority to request from AT&T.3

Accordingly, we find no manifest or clear error in the trial court’s

finding that no technical violation of the discovery orders has been proven at this

time. With that said, however, we agree with the trial court that the evidence

produced does show that the defendants have not been forthcoming, efficient, or

effective in their discovery practice so far.

As our supreme court has recognized, in Hodges v. S. Farm Bureau

Cas. Ins. Co., 433 So.2d 125, 129 (La.1983):

The basic objectives of the Louisiana discovery
process are (1) to afford all parties a fair opportunity to
obtain facts pertinent to the litigation, (2) to discover the
true facts and compel disclosure of these facts wherever
they may be found, (3) to assist litigants in preparing
their cases for trial, (4) to narrow and clarify the basic
issues between the parties, and (5) to facilitate and
expediate the legal process by encouraging settlement or
abandonment of less than meritorious claims.

3
Moreover, according to the expert trial testimony, the backup of the iPhone 5 contains a
file that tells “precisely when the backup occurred.” The plaintiffs make much of the defendants’
failure to produce their actual iPhones for imaging in November 2015. However, their expert
also testified that deleted messages are overwritten with continued use. Therefore, it logically
follows that, if the backup occurred in March or April 2015, as Mr. Vincent testified to in the
1442 deposition and which the date file should prove, then the backup, created at least six
months before suit was filed, would contain messages that could very well have been overwritten
by November 2015 with the phone’s continued use seemingly by Mr. Vincent’s son.

17

The defendants’ reluctance and delay in responding to discovery herein thwart

these objectives, as well as offend the very purpose behind our discovery laws.

We note with great disapproval that the defendants did not produce a single text

message until after the plaintiffs filed their motion for sanctions. And when the

messages were finally produced, they were piecemeal and did not correspond with

the AT&T phone records. Rather, the messages and emails were admittedly hand-

selected and reproduced by Mr. Vincent from his computer. The defendants did

not even search their Kiersted database until after the September 12, 2016 hearing.

While neither the Preservation Order nor the Production Order was explicit as to

the manner or method of preservation or production, the trial court order requiring

the defendants’ compliance with the plaintiffs’ model of production made in its

original denial of sanctions hopefully will remedy any deficiencies in these orders.

Nevertheless, La.Code Civ.P. art. 1462(E) acknowledges the issues

that have arisen with the recent advent of electronic discovery and grants the courts

discretion to appoint a special master to aid in the production of such discovery:

If the requesting party considers that the
production of designated electronically stored
information is not in compliance with the request, the
requesting party may move under Article 1469 for an
order compelling discovery, and in addition to the other
relief afforded by Article 1469, upon a showing of good
cause by the requesting party, the court may order the
responding party to afford access under specified
conditions and scope to the requesting party, the
representative of the requesting party, or the designee of
the court to the computers or other types of devices used
for the electronic storage of information to inspect, copy,
test, and sample the designated electronically stored
information within the scope of Articles 1422 and 1425.

By appointing a designee, the court can direct the manner and scope of the search

while ensuring the protection of the responding party from undue burden and

18

disclosure of protected information. In this way, the court facilitates the requesting

party’s access to relevant and discoverable information and, at the same time,

protects the responding party from unwarranted exposure, both of which are even

more necessary now as discovery continues to move in an electronic and digital

direction.

Pursuant to the Preservation Order herein, both parties preserved their

electronic and digital data. That data is now contained in image databases, which,

under the provisions of La.Code Civ.P. art. 1462(E), can be “inspect[ed], cop[ied],

and test[ed]” by a designee of the court for good cause shown. Although the

exhibits and hearings in this matter have not demonstrated a technical violation of

the discovery orders, they have shown good cause for the appointment of such a

designee, particularly given the voluminous nature of the electronic discovery in

this case, the hostility evident in the correspondence between counsel for both

parties, and the outright reluctance of the defendants to cooperate effectively in the

production of their electronic data. In light of this, we believe that the appointment

of a special master to oversee the electronic discovery in this matter is warranted.

VI.

CONCLUSION

For these reasons, we find no manifest or clear error in the trial court’s

finding no technical violation of the discovery orders herein. With the strong

recommendation for the appointment of a special master, we affirm the trial court’s

judgment, denying the plaintiffs’ motion for reconsideration or rehearing.

Costs are assessed to the Defendants/Respondents.

WRIT DENIED.

19