BACKGROUND

This case arises from the termination of employment of three AWG employees, David Gilberg, Douglas Stokes, and Teresa Leonard. In April 2014, an email containing a racial slur was printed using an AWG printer in AWG's Nashville office. This document was discovered in the printer, which led to an investigation. Jerry Burke, AWG's Corporate Security Manager, traced the email to a laptop computer operated by Leonard at the time the document was printed in Nashville. This led to Burke investigating Leonard's email account. Burke discovered numerous other emails unrelated to work. Leonard was fired after AWG concluded that she printed an email containing a racial slur in the Springfield and Nashville offices and showed that email to Springfield co-workers in April 2014. Leonard denies sending the email to the Nashville office's printer, but does not deny printing the email in Springfield or showing it to Springfield co-workers. The decision to terminate Leonard was, according to AWG, based solely on the fact that she stored, printed, and shared with co-workers, an email containing a racial slur in violation of AWG's IT and Anti-Harassment policies.

AWG also began investigating other email accounts based on the discoveries made while investigating Leonard's email account. Burke specifically examined the email accounts of those individuals often associated with the numerous non-work-related emails that Leonard received. With the assistance of AWG's IT department, Burke accessed the email accounts of this subset of individuals using the employees' log-in credentials. Burke accessed only the active email inboxes for these employees, and did not search through their deleted emails.[1] Burke printed out emails that he believed would be “questionable” under AWG's policies. He then provided those emails to Susan Ott, AWG's Vice President of Human Resources at the time. Following a review of the emails, AWG fired Gilberg and Stokes.

AWG contends that Gilberg was fired because he had forwarded, on two different occasions, an email containing 26 images of nude women in various poses, and because he stored those images in his email. Gilberg admits to sending these emails.

AWG contends that Stokes was fired because he sent and received emails containing “jokes” involving sexual innuendos, and also because he sent emails to a female clerical employee containing inappropriate content. Stokes also admits to sending and receiving the emails at issue.

Plaintiffs assert that the email investigation and the termination justifications are pretextual. Plaintiffs allege that age discrimination was the true reason for AWG's decision to fire Leonard, Gilberg, and Stokes. Leonard, who denies printing the document discovered in the Nashville printer, was 59 years old and worked at AWG for 29 years, but was fired due to this email. Gilberg, who was 58 years old and worked at AWG for 32 years, was fired after forwarding the email containing nude photos four years prior to the date of his termination. Stokes, 56 years old and an employee for 31 years, was fired for emails sent months or years prior to his termination.

*2 Plaintiffs retained the services of Scott Schaffer, who is the founder and chief investigator for Watermark Forensic Services and Litigation Support. According to his curriculum vitae, he is an information technology specialist who provides digital forensic services and who conducts digital investigations for civil, criminal, and internal matters.

Mr. Schaffer performed an independent examination of AWG's emails. This examination encompassed more than one million emails spanning accounts belonging to nineteen employees. His report provides three broad conclusions. First, “The investigation undertaken by AWG and documented within the reviewed papers was incomplete and not performed in an accepted scientific manner.” Second, “Certain email headers have been altered by a person or process.” Third, “There are several instances of clear violations of the AWG Communications & Information Systems Policy by users which did not result in disciplinary actions.”

Defendants object to each of these conclusions on a variety of bases. Additionally, they object to certain sub-conclusions associated with Mr. Schaffer's opinion that the investigation was incomplete and unscientific.

LEGAL STANDARD

Fed. R. Evid. 702. In order to meet this standard, Rule 702 simply requires “than an expert possess ‘knowledge, skill, experience, training or education’ sufficient to ‘assist’ the trier of fact, which is ‘satisfied where expert testimony advances the trier of fact's understanding to any degree.’ ” Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (quoting 29 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6235 (1997)). “[C]ases are legion that ... call for the liberal admission of expert testimony.” Johnson v. Mead Johnson & Co., LLC., 754 F.3d 557, 562 (8th Cir. 2014). Any doubts “regarding whether an expert's testimony will be useful should generally be resolved in favor of admissibility.” U.S. v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (quoting Sphere Drake Ins. PLC v. Trisko, 226 F.3d 951, 954 (8th Cir. 2000)).

ANALYSIS

The central issue in this case is whether AWG's decision to fire Plaintiffs was legitimate or discriminatory. Plaintiffs argue that the investigation and its results were a mere pretext for age discrimination, while Defendants argue that the investigation and its results were the sole basis for the termination decisions. At issue in this motion is whether Mr. Schaffer's opinions and sub-opinions are admissible in light of that central issue.

Conclusion #1: Manner of Investigation

Mr. Schaffer's report concludes, “The investigation undertaken by AWG and documented within the reviewed papers was incomplete and not performed in an accepted scientific manner.” This conclusion is admissible but should be limited strictly to an IT analysis. Mr. Schaffer is not qualified to opine or judge the propriety or completeness of the manner in which the human resources investigation was conducted from a human resources perspective. The scope of the investigation undertaken is, at its core, a human resources and management decision. He is not a human resources or business management expert.

*3 Plaintiffs may present evidence of Mr. Schaffer's own efforts and methods and that he found additional emails during his investigation of the email archives provided to him. He may even explain why the search methods utilized by AWG failed to identify the additional emails he found and limitations of AWG search methodology.

Sub-Conclusion 1A: Scope of the Search

Mr. Schaffer criticizes the AWG investigation on the basis that Burke did not utilize a complete dataset — that is, Burke did not examine every email in the accounts belonging to the individuals whose emails were searched. Mr. Schaffer is permitted to testify that Burke examined a limited subset of the emails, and he is further permitted to testify that his own investigation led to the examination of far more emails. He is prohibited from expressing an opinion categorizing the scope of Burke's investigation as inadequate or insufficient. Again, this is a human resources decision that is based on the needs of the business and the investigation. Counsel may argue based on Mr. Schaffer's finding that AWG's investigation was pretext.

Sub-Conclusion 1B: Incomplete Mailbox Archival

Mr. Schaffer's report indicates that at least one email was not provided in the archived emails made available to Plaintiffs and Mr. Schaffer. The email that started this entire chain of events, printed in Springfield by Teresa Leonard, was not included in the archives. Mr. Schaffer is permitted to testify regarding the fact that at least one email was not present in the archives and what that might mean. He should, however, avoid speculation regarding the number of emails that may not have been included, or what those emails might have contained.

Sub-Conclusion 1C: Poor Search Methodology

This portion of Mr. Schaffer's report appears to criticize the scope of the investigation and the methods used to conduct the investigation. Again, Mr. Schaffer may explain the scope of the investigation performed by AWG and compare it to his own, but will not be permitted to express opinions regarding the adequacy of the scope of Burke's investigation in the context of a human resources investigation. Whether Burke should have examined more email accounts or whether he should have looked through the deleted emails is not an appropriate topic for Mr. Schaffer's testimony as an expert witness in IT. However, Mr. Schaffer may discuss his own search methodologies and the results derived from them and contrast that to the AWG search methodology. Further, he may discuss the Todd Cooper email that apparently went undiscovered during AWG's investigation. This will allow the trier of fact to decide for itself whether the investigation was improperly narrow and whether it was a pretext.

Sub-Conclusion 1D: Differing IP Addresses

Mr. Schaffer also concludes that there are poor security controls in place regarding account access. This evidence will be admitted. Specifically, on April 1, 2014, data shows that Teresa Leonard was simultaneously logged into two different machines, each with a different IP address. He claims it is impossible to determine which machine Teresa Leonard was personally accessing, and which machine she was logged in on, but not currently accessing.

Leonard has already admitted that she printed the email in Springfield and showed it to co-workers. However, she denies sending the email to print in Nashville, which is what spurred the investigation to begin. Plaintiffs may argue that someone else accessed Leonard's email account from the second machine and sent the document to the printer in Nashville starting the investigation, whether intentional or unintentional.

Sub-Conclusion 1E: Preservation of the “Toughbook”

*4 Mr. Schaffer may testify regarding steps taken toward preservation of the data on the Toughbook, and whether additional steps toward that end “could” have been undertaken. He may not assign a possible motive to AWG's efforts in this regard nor opine what AWG “should” have done.

Sub-Conclusion 1F: Reports of Users “Cleaning” Email

The Court will permit the introduction of evidence that AWG employees approached other AWG employees to assist in “cleaning” their emails. The trier of fact should be allowed to consider this information and decide whether it demonstrates the investigation was intended to target certain people without catching others.

However, the Court will not permit Mr. Schaffer to testify that a litigation hold should have been put in place. Mr. Schaffer admitted during his deposition that he does not know when a litigation hold is required. Additionally, this is a legal opinion, which is beyond his area of expertise. Whether a litigation hold should have been imposed is for this Court to decide, not an IT expert.

Conclusion 2: Altered Email Headers

Mr. Schaffer's report concludes, “Certain email headers have been altered by a person or process.” The report explains that an email header is a portion of code within each email that contains information such as where the email came from and how it reached its destination. It indicates the originating email address and/or the system used by the sender, the IP address of each system the email passed through as it went to its final destination, and the amount of time the message was stored on each system on its way to its destination.

Mr. Schaffer indicates that, during his investigation, roughly 65% of the emails he investigated had altered email headers. While he has no opinion as to what caused these changes to the email headers, he does definitively state that emails with modified headers “cannot be viewed as the ‘original’ version” of the email.

Mr. Schaffer does not indicate whether this demonstrates that the contents of the emails may have been modified. His testimony should not include any speculation regarding such modifications.

Conclusion 3: Violations of Policy without Disciplinary Actions

Mr. Schaffer's report concludes, “There are several instances of clear violations of the AWG Communications & Information Systems Policy by users which did not result in disciplinary actions.” This opinion is inadmissible. Whether the contents of emails discovered by Mr. Schaffer in the course of his examination violated AWG's policies is not a determination he can make. Such conclusions are beyond the scope of his status as an IT expert witness. He is not an expert in human resources. Plaintiffs may use Mr. Schaffer to introduce evidence regarding the existence of other emails and their contents, but Mr. Schaffer may not opine regarding whether they violated AWG's policies.

CONCLUSION

The Court hereby GRANTS-IN-PART and DENIES-IN-PART Defendant Associated Wholesale Grocers, Inc.'s Motion to Exclude Portions of the Testimony of Plaintiffs' IT Expert, Scott Schaffer. (Doc. 128).

IT IS SO ORDERED: