During a video hearing held this week related to discovery in the Acevedo v. eXp sexual assault case, a judge heard arguments to decide whether or not to grant a protective order that would prevent a forensic examination of eXp Founder & Chairman Glenn Sanford’s cell phone, with the defense arguing that the plaintiff’s request for electronically stored information (ESI) in order to review metadata does not outweigh Sanford’s right to privacy.
Judge Alicia Rosenberg granted the protective order without prejudice but stipulated that the defense must work with an ESI vendor to produce additional information that is pertinent to the case, including dates, times and deleted text messages. While Sanford has already produced dozens of pages of screen-shotted text exchanges with several of the accused defendants, plaintiffs attorneys argued that this process of “self collection” has proven insufficient.
A filing on November 19 included 32 pages of messages already produced by Sanford, between him and the former eXp influencers Michael Bjorkman and David Golden, who are accused of drugging and raping women at company recruiting events, as well as messages to and from Dave Conord, who is accused of other sexual misconduct. While Bjorkman and Golden have since been separated from the company, plaintiffs have claimed that eXp knew about the allegations before they became public, and said the released texts demonstrated the need to more closely examine Sanford’s communications.
In a statement provided to RISMedia in response to the November 19 hearing, an eXp spokesperson reiterated that eXp has “zero tolerance for abuse, harassment or misconduct of any kind,“ and that allegations in the lawsuit were “handled with speed, seriousness and deep respect as soon as the accusers brought it to our attention.” eXp declined to answer more specific questions about the messages, citing the pending litigation.
In a filing by the defense on November 26, attorneys argued that since the allegations in the case are based solely on “information and belief” there was “no factual basis” for proceeding with the full release of Sanford’s cell phone.
“Discovery to date has provided no factual basis that Mr. Sanford or eXp knew or should have known of Mr. Bjorkman’s and Mr. Golden’s alleged sexual misconduct,” read the filing. “All Plaintiffs have to support their allegations that Mr. Sanford and eXp ‘knew or should have known’ are rumors. While this may be sufficient to withstand a challenge to the pleadings, it fails to outweigh the right of privacy and the intrusiveness in imaging a person’s cell phone.”
During this week’s hearing, plaintiffs’ attorney Jennifer Lenze asserted that there were “obvious gaps in the production” and “obvious underproduction” of text messages from Sanford, pointing to the fact that an ESI search was conducted of plaintiffs’ devices, even before an official ESI protocol was put in place.
Ultimately, Rosenberg concluded that the plaintiffs’ initial document request to Sanford was too “vague,” stating in the minutes from the hearing that such a request “must describe with reasonably (sic) particularity each item or category of items.”
To produce the information necessary to the case, Rosenberg ordered plaintiffs to provide “specific subject matters of Mr. Sanford’s communications with identified persons” by December 5. Once the subject matters are clearly identified by the plaintiffs, Sanford’s counsel was ordered to work with an ESI vendor in order to become “sufficiently familiar with the data retention architecture of the device at issue in order to guide and supervise the client’s search, collection and production of ESI responsiveness to discovery requests,” read the minutes. “Absent guidance, Mr. Sanford may not be aware of ESI accessible on his phone even if deleted or not otherwise visible to him.”
During the hearing, plaintiffs focused on the importance of producing metadata that would provide the date and time of Sanford’s text messages. Lenze explained to the court that with “text messages produced piecemeal without metadata, it’s hard to know which texts come before which” adding that “timing is critical in our case.”
Plaintiffs argued that the collection of metadata is part of ESI protocol, however, the court did not rule on this point since the ESI protocol had not been filed with the court. “Nevertheless, in the interest of efficiency and justice, the court urges counsel to confer regarding the production of metadata that would at least show the date and time of each text message that is produced from Mr. Sanford’s phone (and from other devices),” read the minutes. “The use of visibly undated and untimed text messages may render depositions and/or trial unduly cumbersome.”
According to the minutes, defense counsel is ordered to inform plaintiffs’ counsel by December 16 whether Sanford has agreed to produce metadata showing the date/time for each text message produced by him from his phone, and by December 20, the requested supplemental production of text messages must be completed.
Redacted files also in question
During the hearing, the issue of heavily redacted minutes from eXp board and compliance committee meetings was also contested by plaintiffs’ attorneys along with one defense attorney. According to these attorneys the degree of redaction in the filings rendered the documents virtually useless.
Defense attorney William Pallares contended that the redactions were necessary to uphold the right to privacy of third parties mentioned in the minutes. “When you balance privacy concerns with are they really part of the needs of this case, you get the redaction,” he said during the hearing.
Judge Rosenberg requested a review in camera (allowing a judge to review documents in private) of the unredacted files in order to determine which, if any, should be submitted. According to the minutes, “the court will require submission of a privilege log of the redactions,” along with “redacted minutes followed by the unredacted versions with the redacted portion highlighted for the court’s in camera review.” Defendant eXp is ordered to provide the privilege log by Dec. 20. Based on discussions with counsel during the hearing, the court is prioritizing the redactions of compliance committee meeting minutes, within which the topics of sexual harassment complaints and revenue share for one of the accused defendants is discussed.
The trial, originally scheduled for April of 2025 and was later pushed to June, has now been moved to September 18, 2025, according to an order to modify the scheduling issued yesterday. This will provide both sides with more time for discovery.
