Electronic Discovery Expert Witness Testimony Allowed in Retaliation Lawsuit

Summary: Electronic Discovery Expert Witness testimony not excluded even though the defendant argued that testimony on “Null Message Bodies” is not relevant because it is not evidence of user deletion.

Facts:  This case (Pajak v. Under Armour – United States District Court – Northern District of West Virginia – October 24, 2022) involves a claim of wrongful discharge.  The plaintiff, Cynthia D. Pajak, filed suit against her former employer, Under Armour, alleging that she was discharged in retaliation because she reported numerous instances of workplace behavior that she deemed inappropriate.  In addition, Pajak argues that she was a victim of gender discrimination.  To assist in her case, the plaintiff hired Electronic Discovery Expert Witness Craig Corkrean to provide expert testimony.  The defendant filed a motion to exclude this testimony.

Discussion: Mr. Corkrean was hired to testify about his forensic review of Brian Boucher’s laptop and cell phone, which is at the center of the plaintiff’s claim of intentional spoliation.  Under Armour claims that it has an issue with three pieces of Mr. Corkrean’s testimony: 1) the existence of “Null Message Bodies” in the digital image of Boucher’s phone; 2) that the “WAL filed” was unavailable; and 3) pictures of Boucher’s laptop.  Under Armour argues that these opinions are irrelevant and unreliable.

First, Under Armour argues that the testimony describing Null Message Bodies is not relevant because it is not evidence of user deletion.  The plaintiff maintains that the testimony of Null Message Bodies will assist the trier of fact in this case.  The court agreed with the defendant, stating that evidence of the Null Message Bodies will assist the trier of fact to understand the evidence.

In addition, Under Armour argues that the WAL File testimony is not relevant because Mr. Corkrean could not state with any certainty the deletion dates of the text messages.  The court again agreed with the plaintiff, opining that evidence of the existence of the WAL file would assist the trier of fact and that evidence of the WAL Timelining process and the WAL File itself is admissible.

Last, the defendant claims that the pictures of Boucher’s laptop are irrelevant and prejudicial because they are labeled “crime scene photos”.  The court again agreed with the plaintiff, stating that the photographs are not irrelevant or prejudicial and that the photographs are relevant to the process Mr. Corkrean used to reach his opinions.

Conclusion:  The motion to exclude the expert witness opinion of Craig Corkrean is denied.