[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Rivera v. Costco Wholesale Corporation, 2025 WL 295667 (D. P. R. Jan. 24, 2025), the court imposed sanctions on a pro se litigant who, in the court’s words, “has engaged in unseemly behavior towards counsel as well as improper discovery litigation.”
In part, Mr. Rivera filed a motion to “To obtain the appointment of a ‘neutral’ expert in computer forensics…. Id. at *2. He alleged “discrepancies in the timestamps of some of the emails produced by Costco as part of the discovery.” The court wrote:
Costco clarified that the timestamps in the emails that form part of its production of documents, is in Coordinated Universal Time (UTC) which is four hours ahead of Eastern Standard Time (EST)…. UTC, Costco further explained, is the time zone in which its e-discovery experts would extract information, including employee emails. This fact accounts for the discrepancies flagged by Rivera where, for example, he claims he sent an email to Costco submitting his complaint at 6:09 am but the document produced by Costco has a timestamp reflecting 10:09 am…. Lastly, Costco clarified that timestamps in email threads could vary depending on the sender’s location.
Rivera v. Costco Wholesale Corporation, 2025 WL 295667 (D. P. R. Jan. 24, 2025).
However, Mr. Rivera did not accept the explanation. Id. at *2. He asserted that “the timestamps are part of a scheme by Costco to deceive him and calls into question the accuracy of the documents produced in discovery.” Id. Among other arguments: “Rivera contends that the so-called parent emails needed to be “rightly” identified with the time zone they belong to.”
Costco responded that:
- Mr. Rivera “attempted to bypass the ‘meet-and-confer’ ordered by [the court] at the discovery hearing insisting that the meeting be recorded, something Costco opposed as unnecessary.”
- “[T]he request for an independent forensic examiner is meritless because the matter of the discrepancy in the timestamps has been duly explained and Rivera has not been able to provide credible evidence that the explanation is misleading or inaccurate.”
- Mr. Rivera was filing meritless discovery motions.
The Rivera court deemed Mr. Rivera’s request for appointment of a neutral expert to be without merit and speculative, writing:
To obtain the appointment of a “neutral” expert in computer forensics, Plaintiff must offer more than speculation or conjecture—he needs to “present at least some reliable information that the opposing party’s representations are misleading or substantively inaccurate.” Williams v. Mass. Mut. Life Ins. Co., 226 F.R.D. 144, 146 (D. Mass. 2005); see also Hardy v. UPS Ground Freight, Inc., No. 17-cv-30162-MGM, 2019 WL 3290346, 2019 U.S. Dist. LEXIS 121277, at *11 (D. Mass. July 22, 2019)(“Courts have required that a movant make at least some effort, for example, by way of expert testimony or an affidavit, to show that this intrusive means of discovery is likely to yield the results sought.”).
Id.
The Rivera court wrote that “Rivera merely speculates that the discrepancy in timestamps must be due to some nefarious intent by Costco but provides no credible evidence of manipulation or fabrication. Costco in turn has provided a reasonable explanation for the discrepancy. It has to do with the different time zones that affected the timestamps reflected in the relevant emails…. At the discovery hearing, Rivera had to admit that the copy of the email generated by him as sender, had the ‘correct’ time (6:09am) thus confirming Costco’s explanation.” Id. at *2.
Rivera merely speculates that the discrepancy in timestamps must be due to some nefarious intent by Costco but provides no credible evidence of manipulation or fabrication. Costco in turn has provided a reasonable explanation for the discrepancy. It has to do with the different time zones that affected the timestamps reflected in the relevant emails…
Rivera v. Costco Wholesale Corporation, 2025 WL 295667 at *2 (D. P. R. Jan. 24, 2025).
The court added:
Courts should be cautious to order intrusions into the electronic systems of a party, including mirror imaging of computers, where the request is unduly vague or unsubstantiated, and/or based on one party’s skepticism that the opposing party has not produced all relevant information.
Id. at *3 (emphasis added).
The court impliedly rejected Mr. Rivera’s request that the “meet and confer” be recorded. On the sanctions issue, it wrote that the record demonstrated uncivil behavior by him. For more on the recordation issue, please see Felder: Part 1 of 4: Court-Ordered Transcription of “Meet and Confer” Session (Aug. 13, 2024).
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