Freeman v. Deebs-Elkenaney
- Colleen McMahon
- 1:22-cv-02435
- U.S. District Court · Southern District of New York
- 5
In Freeman v. Deebs-Elkenaney, Judge Netburn denied Freeman’s discovery motion because the requested inspection was unsupported and disproportionate.
The ruling limits Freeman’s requested access to Deebs-Elkenaney’s computers, email materials, and additional publisher records; it leaves the defendants without the compelled discovery Freeman sought.
What happened
In Freeman v. Deebs-Elkenaney, Lynne Freeman asked for computer hard drives, electronic files in their original formats, access to an email account, and permission to subpoena Wolff’s publisher. Freeman believed two emails produced by Tracy Deebs-Elkenaney had been manipulated to make it appear that certain events occurred before Freeman communicated with Deebs-Elkenaney’s literary agent.
Freeman relied on an expert’s concerns about the emails’ metadata and identifiers. The defendants’ expert disagreed and found no evidence of irregularities. The court also noted that Freeman had not shown she sent her work to the agent by the date she claimed, and that the book Tempest Rising was completed before Freeman allegedly contacted the agent. The requested discovery concerned books that Freeman did not allege were infringing.
Judge Netburn ruled that Freeman had not met the heavy burden required for an inspection of an opposing party’s computers. The court found that the requested discovery was not proportional to the needs of the case and denied Freeman’s motion, including her request to subpoena the publisher.
The detailed version
- Freeman v. Deebs-Elkenaney · No. 1:22-cv-02435
- Colleen McMahon
- Mar. 16, 2023
Background
Lynne Freeman moved to compel discovery from Tracy Deebs-Elkenaney and the other defendants. She sought (1) relevant hard drives from computers Deebs-Elkenaney used to create and send two emails; (2) all previously produced electronically stored information in its original, or “native,” format, including the emails and the received side of one email; and (3) access to Deebs-Elkenaney’s email accounts. Freeman also sought permission to serve a second subpoena on Bloomsbury Publishing, Inc. for versions of Deebs-Elkenaney’s book that had been called Riptide, Tempest, and Tempest Rising.
The dispute centered on an August 2010 email from Deebs-Elkenaney to another author and a September 2010 email that Deebs-Elkenaney purportedly sent to herself. The August email included a draft of Tempest Rising, and the September email included a draft of Deserving of Luke. Freeman believed the emails had been manipulated or backdated. Her theory was that Deebs-Elkenaney’s literary agent received Freeman’s work in October 2010, learned about the motorcycle called a “Ducati Streetfighter S” from Freeman in December 2010, and then passed information to Deebs-Elkenaney. The opinion states that Freeman did not allege in her complaint that Tempest Rising or Deserving of Luke were infringing works.
Parties’ Evidence
Freeman’s expert stated that it was easy to backdate an email and identified several potentially suspicious features, including missing metadata, author information, and the absence of a message identifier on the September email. The expert said these features might suggest computer-date manipulation but did not identify indicators that reliably demonstrated backdating.
The defendants’ expert stated that he collected Deebs-Elkenaney’s electronically stored information by logging into her account and downloading the documents into discovery software, without manipulating or altering the data. He reported that other emails also lacked message identifiers, which could result from account settings or the email protocol used in 2010. He also stated that the author information was arbitrary and found no evidence of irregularities.
Court’s Analysis
Federal Rule of Civil Procedure 26(b)(1) permits discovery of nonprivileged information that is relevant to a claim or defense and proportional to the case’s needs. The court explained that inspection of an opposing party’s computer is allowed only in limited circumstances, such as when there is reason to believe the party tampered with the computer or concealed relevant materials, or when possession or use of the computer is part of a claim or defense. Without demonstrated widespread destruction or withholding of relevant information, the burden and expense of inspection usually are not justified.
The court found that Freeman had not met this heavy burden. It characterized her expert’s evidence of fraud and manipulation as equivocal and noted that the defendants’ expert had addressed the features Freeman considered suspicious. The court also found Freeman’s narrative evidence weak because she had not supported her assertion that she gave the agent her work in October 2010, and because she only assumed the agent’s December motorcycle question related to Deebs-Elkenaney.
The court further found that Freeman could not effectively undermine evidence that Tempest Rising was completed by June 30, 2010, before Freeman allegedly had contact with the agent. The court stated that, even if the emails had been manipulated, Tempest Rising had entered production months before Freeman allegedly met the agent. It also emphasized that Freeman did not allege infringement of Tempest Rising or Deserving of Luke and that discovery about those books was collateral to the case.
Disposition
The court held that inspecting Deebs-Elkenaney’s hard drives or reproducing all electronic discovery in native format was not proportional to the needs of the case. It separately denied Freeman’s request for leave to subpoena Bloomsbury because Freeman had not established a reasonable basis to believe that the work was altered after her alleged first communication with the agent in October 2010. The court then denied Freeman’s motion and directed the Clerk of Court to terminate the motions at ECF Nos. 131 and 132.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.