A woman who alleged an e-discovery company violated a criminal statute when it collected a decade of emails from her personal computer has been vindicated by a jury in Fort Worth.
Angelyn Olson of Maine filed suit against Consilio, which claims to be the largest e-discovery firm in the world, in Tarrant County district court in August, naming both Consilio and its employee Willie Lathan as defendants. She alleged that rather than abiding by an agreed-to plan to collect only a select number of emails responsive to key search terms, Consilio accessed every email she had sent in the decade prior.
The jury, which returned its verdict Wednesday, found Consilio violated Texas Penal Code Title 7, Chapter 33, which makes it a Class B misdemeanor to knowingly access a computer without the effective consent of the owner. The claims against Lathan were nonsuited before the jury got the case.
Trial began Oct. 29 and ended Nov. 6. The jury deliberated for about six hours before awarding Olson $50,000 in damages.
Rob Miller of Miller Copeland, who represents Olson, told The Lawbook in an interview Thursday that based on research he’s done, he believes this is the first lawsuit of its kind, brought against an e-discovery company, that has been decided by a jury.
“I think it’s going to have an impact nationwide,” he said, noting that the Texas statute mirrors the federal statute barring computer access without effective consent. “Consilio is a worldwide company … I think there will be more cases tried like this and i think there will be more cases filed like this.”
The jury determined Consilio accessed Olson’s computer without effective consent and was negligent in its actions but rejected the claim that the company “intentionally” intruded on Olson’s “solitude, seclusion, or private affairs or concerns in a manner that would be highly offensive to a reasonable person.”
Jurors similarly rejected the intentional intrusion theory as it related to Olson’s husband and son — who had alleged Consilio’s overreach swept up emails containing their private information as well.
And jurors also determined Consilio hadn’t committed fraud against Olson,
The panel determined Olson is entitled to $10,000 for past mental anguish, $25,000 for future mental anguish and $15,000 for medical care expenses she’ll likely incur in the future. The panel awarded no damages to Olson’s husband and son, who are also plaintiffs in the suit.
According to the lawsuit, Olson was involved in federal litigation in Maine, unrelated to this case, when her attorneys and an attorney representing D.C.-based Consilio met in November 2021 and agreed on protocol for how the company would go about collecting emails from Olson’s personal email account. Some of the parameters included that the search would only include emails that included 12 predetermined search terms and that the time period of the search would be from Jan. 1, 2012 “to present.”
“This agreement provided that defendant Consilio would apply these search terms only to the email address fields and not to the full body of the email,” the petition alleges.
The day after that initial meeting, Olson’s lawyer exchanged emails with Lathan, described in court documents as a “representative” of Consolio who lives in Fort Worth, about two options for performing the search: run the search terms at the outset of the collection process or “make a full collection of the account” and then filter that collection by applying the search terms.
The lawsuit alleged that Olson’s lawyer “explicitly instructed” in two emails that the search terms should be applied on the front end of the collection efforts, not after a full collection of the emails had taken place.
But when Lathan began the collection, according to both the lawsuit and emails he sent to Olson’s lawyer at the time, he said he found the “best practice” was to apply only the date range and downloaded all 34,000 emails Olson had sent from her email account during the past decade.
Olson alleged that neither Consilio nor Lathan sought approval to change the agreed-upon protocol and accused Lathan of “unilaterally” deciding to change the plan.
Many of the emails collected, she alleged, contained medical history information, Social Security numbers and emails that fell under the attorney-client privilege.
Olson alleged the search constituted an invasion of privacy and a violation of criminal statutes in Texas and Maine.
After notifying Consilio of the allegedly unlawful email download, Olson alleged the company “intentionally destroyed key evidence in this case” by allowing 3.9 gigabytes of her emails to be “overwritten” and “no longer recoverable from the secured server.”
“Due to the destruction and overwriting of plaintiffs emails by defendant Consilio, plaintiffs, and defendants for that matter, cannot ascertain what may have happened to 3.9 gigabytes of plaintiff’s email database,” the suit alleged.
Miller said the conduct of Consilio in this case should serve as a warning to others.
“If Consilio can do this to her, it can do it to any one of us, exposing everything we’ve ever looked at on the internet, every photograph we’ve taken or received,” he said. “It’s scary. And I’m glad this jury said what Consilio did is wrong.”
Counsel for Consilio did not respond to a request for comment Tuesday afternoon.
Tarrant County District Judge Melody Wilkinson presided over the case.
Olson is also represented by Emily G. Copeland of Miller Copeland and Jimmy Goff of Goff Law.
Consilio and Lathan are represented by Allison J. Maynard of Wilson Elser Moskowitz Edelman & Dicker. The case number is 017-331812-22.