Mischaracterizing Evidence
The integrity of the judicial process is fundamentally compromised when evidence is mischaracterized, leading to decisions that may not reflect the truth. Such practices not only undermine the fairness of legal proceedings but also erode public trust in the justice system. Addressing these concerns is essential to ensure that justice is administered impartially and based on accurate representations of all relevant evidence.
Plaintiffs had tremendous difficulty obtaining inter-Defendant emails and text messages throughout discovery. Initially, Defendants claimed that all inter-Defendant communications were protected by the “common-interest doctrine”. Later, Defendants claimed that only post-litigation inter-Defendant communications were protected, but dozens of pre-litigation inter-Defendant communications were still not produced. Plaintiffs found out later that dozens of text messages surrounding almost every key event in this case had been deleted from Defendants’ phones. The vast majority of them were unrecoverable.
However, Sean had produced ALL text messages between himself and one of Craig’s daughters after the receipt of a cease-and-desist letter that contained a preservation notice. (Lisa and Renee received similar letters at approximately the same time.) The name of the program Sean used to print these messages is SyncTech SMS Backup & Restore. As the name suggests, this is primarily a backup program, but can also be used for printing entire text strings. According to the manufacturer, all text messages for all recipients are stored in a single backup file. In addition, the manufacturer stated that the program cannot print without a backup file. This means that Sean had all text messages for all recipients, including all Defendants, in his possession following the receipt of a preservation notice.
Plaintiffs brought the issue of Sean’s backups to Judge Miller’s attention nine times over the course of our lawsuit, but he never addressed the issue. In his December 6, 2022 order he went one step further. Judge Miller removed all references to Sean’s backup programs from a quotation in his order.
Plaintiffs used Artificial Intelligence (AI) to analyze Judge Miller’s actions. The specific AI query was:
Analyze the uploaded December 6, 2022 Order and Memorandum Granting in Part, Denying in Part, and Reserving in Part Six Pre-Trial Motions. In his order, Judge Miller stated:
“Plaintiffs subpoenaed records from Sean and Renee’s phone carriers. These records revealed that text messages had been sent between various Defendants, but they did not reveal the contents of those text messages. (Doc. 290, Exs. 2-3) Following the receipt of these phone records, Plaintiffs served additional requests for documents, including a request that Defendants:
produce all documents and [electronically stored information] comprising texts between [Defendants] between April 1, 2019 and November 19, 2020, which discuss any aspect of this case, Plaintiffs, [Plaintiffs’ daughters, Marie’s father, or mother], including but not limited to, the … texts which the call detail records [obtained from the phone carriers indicate were sent between Defendants].”
However, the actual Request from Plaintiffs stated:
“Request No. 8: Please produce all documents and ESI comprising texts between you and Lisa, Renee, or Ashley between April 1, 2019 and November 19, 2020, which discuss any aspect of this case, Plaintiffs, [Plaintiffs’ daughters, Marie’s father, or mother], including, but not limited to, the 239 texts which the call detail records from AT&T indicate you exchanged with Lisa, the 398 texts you exchanged with Renee, and the 921 texts you exchanged with Ashley. If any of these texts cannot currently be found on your phone, please provide them using a backup program, such as the two programs (SyncTech SMS Backup & Restore and GilApps SMS Backup & Print) you have used previously during discovery. (See DEFENDANTS 230 and DEFENDANTS 634.)”
Plaintiffs alerted Judge Miller to the existence of Sean’s text message backups nine times throughout the course of this litigation. Four of these alerts were made prior to and five of these alerts were made subsequent to Judge Miller’s December 6, 2022 order. Judge Miller never mentioned this evidence throughout our case.
What is the significance of Judge Miller’s wording change in his December 6, 2022 order, and what is the significance that Judge Miller never addressed the issue of Sean’s backups during the entirety of the case?
Note: Craig and Marie’s daughter’s names and the names of Marie’s parents were used in the AI query but have been substituted here with [bracketed text] to preserve their privacy.
ChatGPT (AI) Analysis
Here’s the analysis of the significance of Judge Miller’s wording change, its impact, and the omission regarding Sean’s backups:
1. Significance of Judge Miller’s Wording Change
What Changed:
-
Plaintiffs’ Actual Request (Request No. 8):
- Specifically targeted texts between Sean and Lisa, Renee, or Ashley.
- Explicitly referenced the text message counts from AT&T records.
- Included backup recovery instruction: Use programs (e.g., SyncTech SMS Backup & Restore or GilApps SMS Backup & Print) if texts were not on phones.
-
Judge Miller’s Summary of the Request in the Order:
- Paraphrased the request to apply to “texts between Defendants” broadly.
- Omitted the specific recovery demand using backups.
- Removed specificity about message counts and individual pairings.
Why the Change Matters:
- The actual request demonstrates Plaintiffs’ precision: They knew exactly which text streams (Sean ↔ Lisa, Sean ↔ Renee, Sean ↔ Ashley) were at issue based on subpoenaed records.
- Plaintiffs directly preempted a “they’re gone” defense by requesting use of known backup tools.
- Judge Miller’s wording generalized the request, framing it as a broader and less specific demand.
Legal Impact:
- By generalizing the request, the court potentially minimized the weight of Plaintiffs’ targeted, evidence-based discovery effort.
- Omitting the reference to backup recovery weakened the spoliation argument because the court didn’t address that recovery was technologically possible and requested.
- The paraphrase reframed the reasonableness of Plaintiffs’ discovery—making it appear like an overbroad fishing expedition instead of a focused recovery demand.
2. Effect on the Order and Ruling
- The spoliation motion was only partially granted—limited to Sean’s lies and deletion, and limited to costs of examining Renee’s and Lisa’s phones.
- No adverse inference or broader sanctions were granted.
- The court’s mischaracterization of the discovery request gave weight to Defendants’ argument that retrieving lost messages was speculative or unreasonable.
- It also weakened Plaintiffs’ position that Sean’s deleted messages (some of which were backed up) should have been recovered and produced.
3. Significance of Ignoring Sean’s Known Backups
- Plaintiffs repeatedly flagged Sean’s use of backup software and the potential for recovering deleted texts.
- Judge Miller never addressed these backups despite being alerted nine times.
- Impact of Ignoring the Backups:
- Suggests the court ignored a viable recovery avenue—potentially leaving discoverable evidence unexamined.
- By not weighing the backup argument, the court failed to properly evaluate whether spoliation caused irremediable prejudice or if recovery was possible.
- This oversight benefited Defendants by allowing them to argue that texts were lost, rather than retrievable.
- It also weakened the Plaintiffs’ argument for harsher sanctions, as the judge effectively treated the lost data as unrecoverable without examining the recovery feasibility.
📌 Summary of the Legal and Strategic Significance:
| Issue | Effect |
|---|---|
| Wording Change | Shifted perception of the request from specific, evidence-based to general and overreaching. |
| Impact on Spoliation Sanction | Reduced the severity of the sanction—limited to partial costs rather than adverse inference or case-altering penalty. |
| Ignoring Backups | Missed opportunity to enforce the duty to preserve; failed to consider that deleted messages could have been recovered—weakening Plaintiffs’ claims of prejudice. |
| Overall Consequence | Benefitted Defendants by minimizing their exposure to sanctions; undermined Plaintiffs’ strategic position in proving deliberate spoliation. |
Important Note!
The Artificial Intelligence analysis above reflects the unusual and undisclosed relationships between judicial officers in this case.
Defense attorney Kirsten Hansen is the daughter of retired Otter Tail County Judge Mark F. Hansen. Judge Hansen’s former law clerk, James E. Morrison, authored at least 13 orders for Judge Miller in Plaintiffs’ case, including this one. Neither Judge Miller nor Attorney Hansen disclosed the prior relationship between Clerk Morrison and Judge Hansen to Plaintiffs.
In Skarsten, we reversed summary judgment for the insurer based on the resident-relative provision and cautioned “a court must not rely on selected facts in order to justify a conclusion.” 381 N.W.2d at 19. Here, the district court’s summary-judgment decision rested on “selected facts” because it ignored relevant evidence favorable to appellants’ position, drew inferences unfavorable to appellants, and failed to view the record evidence in a light favorable to appellants.
Progressive Ins. v. Abel, No. A21-1267, 2022 WL 2124869, at *5 (Minn. Ct. App. June 13, 2022)