513 F.Supp.3d 839
N.D. Ill.2021Background
- Parties discovered that Yahoo! Messenger chat data relevant to intent and communications (notably between defendant Duke and SEO consultant Kirti Saraswat) was not preserved or produced; the issue first arose in 2018 and persisted through discovery.
- The Court held a five-day evidentiary hearing (Oct–Nov 2019). 4Discovery owner Chad Gough testified that no Yahoo! chats were retrievable in Sept. 2018 and that if chats were shown elsewhere but absent from the account, a reasonable inference is they had been deleted; he also testified that, once Yahoo! disabled the chat service, forensic recovery was effectively impossible.
- Defendants later submitted a status report with a declaration from their e-discovery expert Yaniv Schiff (filed Jan. 2020) opining that Yahoo! system changes in Aug. 2016 likely erased chat data and that there is no evidence Duke intentionally deleted chats.
- Defendants moved to reopen or supplement the evidentiary record to add Schiff’s declaration (Feb. 2020), arguing Gough’s court-directed testimony improperly suggested Duke deleted chats and that Schiff’s opinion rebuts that inference.
- The Court denied the motion: Rules 26 and 60(b) did not authorize reopening; defendants had prior opportunities to present evidence; Schiff is a retained expert who must be subject to deposition/cross-examination; Schiff’s declaration does not refute Gough’s core point that deleted/unrecoverable chat data cannot now be forensically evaluated and circumstantial evidence still supports a deletion inference; the issue is left for the jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court should reopen/supplement the evidentiary record to add Schiff’s expert declaration | Reopening is untimely, prejudicial, and a belated effort to shift explanations; defendants had ample opportunity to present evidence at the hearing | Schiff is newly discovered evidence that rebuts the inference raised by Gough that Duke deleted chats | Denied — Court exercised discretion: reopening would delay case, Plaintiff must be allowed to depose Schiff, defendants had prior opportunities to present evidence |
| Whether Fed. R. Civ. P. 26 requires disclosure or limits the Court’s questioning of witnesses | Rule 26 disclosure obligations do not constrain the Court’s questioning; Rule 26 governs parties, not the Court | Defendants relied on Rule 26 to argue against Gough’s testimony or for supplementation | Court: Rule 26 inapplicable to the Court’s questioning; it does not provide basis to reopen the record |
| Whether relief is available under Fed. R. Civ. P. 60(b) to reopen the interlocutory evidentiary hearing | Rule 60(b) relief inapplicable because there is no final judgment or order from which to seek relief | Defendants argued Rule 60(b) or newly discovered evidence warranted supplementation | Court: Rule 60(b) does not apply to interlocutory rulings; while court may revisit nonfinal rulings, it declines to reopen here |
| Whether Schiff’s declaration rebuts Gough’s testimony and defeats the inference that chats were deleted by Duke | Schiff’s opinion is self-serving and untested; it does not undermine Gough’s core point that absent/unrecoverable cloud data cannot now be forensically linked to a deletion actor; circumstantial evidence supports deletion inference | Schiff shows Yahoo! system changes (Aug. 2016) plausibly erased chats and there is no direct evidence Duke deleted them | Court: Schiff does not rebut Gough’s testimony that data is unrecoverable nor the circumstantial evidence suggesting deletion; credibility and the ultimate question are for the jury |
Key Cases Cited
- Glasser v. United States, 315 U.S. 60 (Court’s authority to question witnesses to develop facts)
- Tagatz v. Marquette Univ., 861 F.2d 1040 (7th Cir. 1988) (courts may question witnesses; hired experts often biased)
- United States ex rel. Jurena v. Thieret, 659 F. Supp. 1165 (N.D. Ill.) (court questioning and fact development)
- Mintz v. Caterpillar, Inc., 788 F.3d 673 (7th Cir. 2015) (Rule 60(b) applies to final judgments; interlocutory rulings differ)
- Kapco Mfg. Co. v. C & O Enters., Inc., 773 F.2d 151 (7th Cir. 1985) (distinction between interlocutory and final orders)
- Apple Inc. v. Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014) (retained experts are inherently biased; cross-examination mitigates bias)
- LAJIM, LLC v. GE, 917 F.3d 933 (7th Cir. 2019) (standards for newly discovered evidence and Rule 60(b) relief)