Welcome to the new eLessons Learned

eDiscovery Written by Law Students

eDiscovery Written by Law Students

eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.

Law + Technology + Human Error

Law + Technology + Human Error

Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.

New to the eDiscovery world?

New to the eDiscovery world?

Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There

Contribute to eLessons Learned

Contribute to eLessons Learned

Interested students may apply for the opportunity to write for e-Lessons Learned by filling out the simple application. Go There

If I Sue My Employer Can They Access My Private Social Media Account?

Everyone has some sort of social media account in this day and age. Even my mom has a Facebook and Instagram account. Therefore, an important question exists: How private is this information and could it ever be used against me in a court of law? The short answer is yes, if a court determines that the information’s probative value outweighs its prejudicial effect. In such an instance, private content stored on your password protected social media account must be turned over to the opposing party as discovery. Therefore, you must be wary of the content contained on your social media account; you never know when it could be used to your detriment. When Christopher Ogden sued his employer under Title VII alleging that the employer subjected him to a hostile work environment, disparate treatment based on reverse gender discrimination, and retaliation, he never imagined that his private social media communications and content would be subject to discovery and used to impeach the validity of his claim. However, his employer did exactly that and filed a motion to compel discovery seeking all pictures Ogden posted or was tagged in on “any social networking website.” Furthermore the defendant employer requested “all status updates, messages, both sent and received, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments and applications . . . .” This motion was likely never expected to prevail because of its breadth and lack of specificity; however, the court did not dismiss it altogether. Ultimately, the court granted the motion for discovery in part and denied it in part. Relying on the holding of Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., the court asserted that the defendant’s motion cast “too wide a net” and therefore requested information that would be in no way discoverable. However, Ogden did not get to keep all of his social media activities secret from the defendant as the court did carve out an area that was fully discoverable by the defense. Ogden was required to turn over all social media content relating to the lawsuit which contained information regarding his workplace conduct and his emotional state of mind before, during, and after he filed the lawsuit along with possible causes for that state of mind. Therefore, while Ogden’s employer did not gain unfettered access to his personal social media accounts, the court nevertheless allowed access to such information as pertaining to the instant suit regarding Ogden’s workplace conduct and emotional state of mind. The lesson here is that you should be ever so careful what you post on your social media sites; you never know when it could come back to haunt you. The fact that you thought it was private and thereby undiscoverable at trial will not help you. User beware. A.S. Mitchell received his B.A. in Political Science from the University of Central Florida (2008). He will receive his J.D. from Seton Hall University School of Law in 2015. Presently, A.S. clerks for the Monmouth Co. Office of the Public Defender.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

Excessive Force, Missing Video Evidence: Were the Cops Trying to Hide Something?

The Philadelphia Police Commissioner and two police officers were accused of spoliation of evidence in an excessive force case. “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence.” Kinsler v. City of Philadelphia, No. CIV.A. 13-6412, 2014 WL 3964925, at *1 (E.D. Pa. Aug. 11, 2014) (internal citations omitted). In this case, there was an incident that led Jeffrey Kinsler to file a lawsuit against the City of Philadelphia for use of excessive force. Subsequently, a witness submitted a 15-to-30-second-long video to the police department of the events that occurred prior to the arrival of the police officers on scene that day. The police department lost the video. Kinsler argues spoliation and asks for a specific jury instruction stating such, as well as sanctions. The court found however, that there was no spoliation. It determined that the video was not relevant to the case because it only showed events that occurred before the officers arrived on scene. Further, a video was in existence that showed the incident at the time the officers were involved. Also, Kinsler never claimed that the accused officers were ever in possession of the lost video. Therefore, there was no spoliation and plaintiff’s motion for sanctions was denied. Moral of the story: If evidence is at all potentially relevant in pending or foreseeable litigation, preserve it, or risk sanctions. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick in 2012 with a B.A. in Philosophy and Political Science.   Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Do E-Discovery Costs Shift?

It is a known fact that electronic discovery is costly.  For which party, however, is e-discovery costly? Does the cost of e-discovery ever shift to the other party or is it shared amongst the parties? The United States District Court for the Eastern District of Pennsylvania recently considered the cost-sharing question in the case of Cochran v. Caldera Med., Inc., when the defendant’s made a motion requesting to share the burden of costs with the plaintiffs.  The defendant argued that it had limited resources and estimated that it would cost $500,000 to collect and produce the ESI in response to the document requests. The judge ultimately denied the defendant’s request, but why? The court began with the presumption that each party must bear its own discovery costs. The judge first addressed the law under Rule 26(b)(2)(B), where the court has the discretion to grant cost sharing and other relief if the producing party shows “that the information is not reasonably accessible because of undue burden or cost.”  Information is found to be accessible if it is stored a readily usable format. The defendant did not provide any documentation in support of its estimate or identify what portion of this estimate was attributable to retrieving accessible information or reviewing documents for privilege, both of which tasks are typically not subject to cost sharing. Without this evidence, the court held that the defendant failed to show that the ESI was not reasonably accessibly as required to allow cost sharing under Rule 26. The court next considered cost sharing under Rule 26(b)(2)(C)(iii), which permits cost sharing if the court determines that “the burden or expense of the proposed discovery outweighs its likely benefit. The court held that the plaintiff document requests were relevant and material information. Thus, using the proportionality factors from Rule 26, held that the burden on the defendant did not outweigh the importance of the discovery and the seriousness of the injuries alleged by the plaintiffs and the defendant must pay. The moral of the story is that cost shifting between parties can only be considered in limited situations according to the FRCP 26. They are if inaccessible data is being requested for production, or if proportionality supports it. Keep this in mind when making your next motion for cost sharing. Click here for a look at Federal Rule 26.  Amanda is a third year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Hiding Bank Account Records Can Be Criminal—Not Just For the Mob!

During the course of discovery, plaintiff Luellen requested that defendant Hodge  produce bank account records.  Hodge failed to produce the bank account records, claiming that the bank, Capital One (and Charter One), had destroyed these records already. Luellen argues that Hodge was aware that the records were being sought for discovery and deliberately allowed the records to be destroyed. Luellen argues that Hodge had two different ways of being aware that the records were relevant to litigation and thus had a duty to preserve the records. First, Hodge was served with Luellen’s interrogatories, requesting information relating to bank accounts in Hodge’s name. Second, Hodge filed a motion for a protective order requesting that the Court quash a subpoena directed to Charter One. The fact that Hodge sought a protective order regarding the bank indicates knowledge that the bank records were sought for discovery. In addition, Luellen claims that in filings dated February 27, 2012, Hodge made statements indicating his awareness of Luellen's pursuit of information regarding Hodge's personal accounts. The argument for spoliation of the bank records is based on the reasonable assumption that if Hodge had directed Charter One to preserve his records when he was served with the first set of interrogatories, then the relevant records would not have been destroyed in accordance with the bank's record retention policy. In a spoliation motion, the party must show that:   (1) the party charged with destroying the evidence had an obligation to preserve it; (2) the records were destroyed with a “culpable state of mind”; and, (3) the destroyed evidence was relevant to the party's claim or defense. In reference to the first element, the court found that “a common sense understanding of the relationship between an account holder and a financial institution leads to the conclusion that Hodge had sufficient control over the documents to be able to direct their preservation.” Hodge should have directed the bank to preserve the records. In reference to the second factor, that the records were destroyed with a culpable state of mind, the court finds that Hodge’s failure to prevent the bank from destroying the records was negligent but not bad faith. The court finally holds that severe sanctions are not warranted in this case because Luellen has not shown that Hodge's failure to preserve the Charter One account records were done in bad faith or that Luellen had been severely disadvantaged by the destruction of the records. Hodge was directed to reimburse Luellen's costs and expenses in the amount of $18.00. The takeaway message here is that while you are in control of bank records, if you can show that you did not act in bad faith when you failed to prevent the banks from destroying the records, you could avoid a spoliation charge. But beware, it is better to anticipate this and prevent it by telling your bank to keep all your records! Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated cum laude from UCLA and completed graduate work in Biomedical Science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Rule 37: When IT Meets IP

The most important sentence of the court’s opinion in Armstrong Pump, Inc. v. Hartman, contained one word:  “Enough.”  After more than four years since the lawsuit was filed, discovery is far from complete, the case is far from ready for trial and the Court made a point to note “its frustration with the continual and growing animosity between the parties” which has “slowed the progress of the case” and “required repeated judicial intervention.” In February 2005, the parties’ relationship began when defendant Hartman/Optimum entered into a License Agreement with plaintiff Armstrong concerning three patents that defendant owned.  The License Agreement contained several restrictions, including that Armstrong had no rights to “field implementation” of the patented product.  At its essence, the dispute arose when Armstrong allegedly breached the License Agreement by utilizing the “field implementation” when the Agreement explicitly prohibited such use.  Defendant accused Armstrong of exceeding the limited scope of its license rights and therefore breached or threatened to breach the License Agreement. What began as a somewhat typical breach of contract case quickly devolved into a flurry of document production disputes.  Optimum initially served Armstrong with two sets of discovery requests seeking for “all documents” pertaining to the License Agreement, communications between Hartman and Armstrong and the alleged “field implementations.”  Over Armstrong’s protest, Optimum filed a motion to compel, which the court granted.  The court, however, cautioned Armstrong “not to engage in piecemeal production of materials it has located” that are, in fact, responsive.  Because Armstrong never filed a motion for a protective order, Optimum served a second set of discovery requests pertaining to marketing efforts and customers that might provide relevant information regarding the use of “field implementation” technologies.  Again Armstrong protested and again, the court granted a motion to compel. The most recent discovery dispute contains allegations of delays, omissions, and misrepresentations, and “threatens to make this case more about document production than about breach of a contract.  After the second motion to compel, Armstrong made at least nine separate document productions and produced over 34,000 documents before the first deposition was even taken.  In that first deposition, Optimum deposed Thomsen, who was an Armstrong Director, and he revealed to Optimum for the first time that any Armstrong product using the relevant patents went through a five-step development process.  This deposition led Optimum to accuse Armstrong of withholding documents and information related to the development process. Optimum now argues that information recently acquired should have been provided years earlier and that Thomsen and other pertinent employees need to undergo further deposition to reflect the newly acquired information.  Optimum believes that Armstrong is hiding or delaying information about unauthorized sales that violate the License Agreement and that therefore, Armstrong should be sanctioned and ordered to compel further responses. Armstrong counters that it has been sufficiently responding to the discovery requests and accuses Optimum of demanding more information and documentation without reviewing what has already been handed over.  Armstrong also argues that Optimum did not follow Rule 37 of the Federal Rules of Civil Procedure by meeting with Armstrong to discuss its concerns prior to filing the current motion. After taking the time and effort to express its frustration at this exceedingly adversarial case, the court goes on to write that certain requests have “wasted the court’s time.”  The court further notes that “no one, in this history of the case, has objected to any discovery requests enough to make a motion for a protective order” under Rule 26(c).  The court goes as far as to accuse the bickering parties as preferring that “the Court forget what the actual claims are in this case and start obsessing over [frivolous] details.” After explaining the foundational premise of Rule 37, helping to enforce proper conduct, the court hands down an order finalizing once and for all what documents Armstrong must produce.  The court utilizes a refined keyword list, based on certain phrases that appear repeatedly in previous motions, to rule that Armstrong must “search ALL corporate documents, files, communications, and recordings for EACH of the above phrases.” When the search is complete, a representative of Armstrong along with Armstrong’s counsel must file a sworn statement confirming that Armstrong made a good-faith effort to comply with the court’s order of production.  The court concludes by warning that failure to comply will lead to sanctions under Rule 37(b)(2)(A) and puts Optimum on notice that “the Court will not hesitate to apply to the same approach to its document production.” Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts, where she earned her B.A. in English and Political Science.  She will receive her J.D. from Seton Hall University School of Law in 2015.  After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Is “Discovery On Discovery” Improper?, Part 2

In Freedman v. Weatherford Int’l, Ltd., Weatherford hired law firm Latham & Watkins to review allegations of security fraud made to Weatherford’s whistleblower hotline. Latham found no evidence of fraud. However, a second investigation was conducted by Davis Polk & Wardwell, LLP. Plaintiff’s alleged that Davis’s second investigation reveal that Latham actually discovered evidence of wrongdoing. Plaintiffs sought reports comparing the results of Weatherford’s production with search terms and productions related to the two investigations and search terms proposed by the plaintiff, in order to test the adequacy and reasonableness of Weatherford’s initial production. Weatherford objected, noting that Plaintiff had no legal basis for its request and its requested production was “hugely burdensome.” The District Court for the Southern District of New York held that the plaintiff’s request was “outside the bounds of Rule 26 of the Federal Rules of Civil Procedure . . . [because they did] . . . not proffer an adequate factual basis for their belief that the production [was] deficient.” Plaintiff’s claim that Weatherford’s production was deficient because 85% of the pages produced related to different case was too conclusory. Furthermore, the Court was not surprised that Weatherford used dramatically different search terms here compared to search terms used in the two investigations and a related action, because of the differing class periods and varying false statements. The court also addresses arguments related to Subject matter waiver and the crime-fraud exception of the attorney-client privilege, but these arguments were not related to e-discovery. Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology. Want to read more articles like this?  Sign up for our post notification newsletter, here.

To Preserve or Not to Preserve? THAT Is the Question

This dispute stems from Plaintiff Linda Riley’s slip and fall at a Marriott hotel in Hawaii (her husband, James, is another named plaintiff).  As a result of this fall, in simple terms, Riley broke her right leg and sustained permanent nerve damage including sensory motor loss and weakness in her right foot.  Riley contends Marriott was negligent for failing to remove accumulated water (it had been raining that day), provide a non-slip surface, or provide warning signs. The entire accident was recorded on Marriott’s security cameras, and according to the loss prevention manager, the footage is maintained for 30 days.  However, during discovery, instead of being provided with several hours of footage, Riley was only provided with about 7 minutes; the rest was destroyed.  The footage released began about one minute before Riley’s accident, and ended before Riley was even lifted off of the ground! Plaintiff rightfully believed she was prejudiced because:  (1) she is unable to determine how much water was removed from the location and how long it took hotel staff to remove it, and (2) that the loss prevention manager’s testimony regarding the footage cannot be meaningfully challenged because the footage was gone.  This recording was apparently turned over to the Marriott’s liability insurance carrier, but neither Marriott’s investigation into its destruction (if one occurred) nor the results of any such investigation were ever disclosed.  Even maintenance logs—that might have also denoted any water that was removed from the floor or the placement of any signs—were also allegedly destroyed. From this, the court “easily” found Marriott had a duty to preserve both the sweep logs and the video footage from the day of the accident.  Further, the court recognized Marriott’s failure to offer any justification for its failure to preserve the evidence.  For these actions, the court found “at a minimum, gross negligence.”  The question then turned to imposing sanctions. Fortunately for Marriott, their answer was not stricken.  Nonetheless, their failure to preserve evidence still resulted in an adverse inference instruction regarding the video footage, or lack thereof.  This means the absence of a recording can, at trial, corroborate Plaintiffs’ statements that there were no warning signs at the time of the accident and that water had also accumulated on the floor.  Of note here, the jury would not be required to make such an inference.  However, Marriott might not be eager to take that chance.          Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Should a Party Inform its Adversary that it has Inadvertently Disclosed Privileged Information During Discovery in Order to maintain that Information’s Privileged Status? Certainly in Less Time than Three Months!

Please be very careful when turning over discovery to adversaries! Every reasonable precaution should be made to ensure that privileged information is not being turned over. Obviously, accidents do happen and no matter how careful a party may be, sometimes privileged information will slip by and be disclosed to the opposing party. However, in such an instance, do not wait three months to inform the opposing party about the error. Well, only if the disclosing party wants to keep the information privileged, of course! Franklin Square Associates has provided a blueprint for what not to do when privileged information has been inadvertently turned over. Suit has been brought against them by the Gloucester Township Housing Authority in a dispute over the availability of subsidized residential housing. Among the thousands of documents that Franklin Square turned over in discovery were two letters (amounting to three of the thirty-five hundred pages produced) between the Managing Agent of Franklin Square and his attorney. Defendant Shaun Donovan of the U.S. Department of Housing and Urban Development (HUD) brought a motion asking judge to declare that the letters were not covered by the attorney-client privilege, but that even if they were, the privilege has been waived due to their disclosure in discovery. Without question, the court said, the letters contained privileged information. They were communications between a lawyer and her client, in which legal advice was sought and offered. They represented the quintessential example of what is covered by the attorney-client privilege. So the issue here, then, was whether the privilege had been waived. To make this determination, the court analyzed the facts of the case through five factors the Third Circuit uses to decide whether a party’s disclosure has waived privilege: (1) the precautions taken to prevent inadvertent disclosure; (2) the quantity of inadvertent disclosures; (3) the extent of the disclosure; (4) the extent of any delay and the measures taken to rectify the disclosure; and (5) any overriding interests of justice. Regarding the first factor, the court noted that Franklin Square failed to set forth any precautions taken to avoid this inadvertent disclosure! They failed to produce a privilege log and failed to mark any documents as “confidential” or “privileged.” Franklin Square instead said that there were just too many documents to go through. If a party has resorted to using that as an excuse, it is very difficult to feel sympathy for them and the predicament they find themselves in. Parties must be more careful than this! The court found that this factor favored a finding of waiver. Regarding the second factor, the court noted that this current motion to declare the letters unprivileged concerns just three out of thirty-five hundred documents. Therefore, the inadvertent disclosure was de minimis in the grand scheme of things. This was another factor favoring waiver. Regarding the third factor, the court did not feel badly for Franklin Square in this situation because the production of these letters concerned clearly privileged information and yet Franklin Square did nothing to mark the documents as confidential or as communications between an attorney and her client. These letters warranted more scrutiny than that, and so due to the carelessness at play here, the court found this factor to be yet another in favor of a finding of waiver. Regarding the fourth factor, the court found that Franklin Square did not attempt to rectify the situation until more than three months after the inadvertent disclosure! Not only that, these same letters had been produced in a prior state court hearing, meaning these documents had now been disclosed twice! Clearly this favored a finding of waiver. Finally, regarding the fifth factor, the court did not find any overriding interests of justice here to warrant maintaining the privileged status of the documents despite the multiple errors committed by Franklin Square in this case. Therefore, the court held in favor of HUD, and declared that attorney-client privilege had been waived in regards to the letters. The takeaway here? Always, always, always take all reasonable precautions to ensure that privileged information is not being produced in discovery. Even if this information is somehow turned over, notify the opposing party right away to avoid waiving the privileged nature of those documents. Do not wait more than three months to do something about it! Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of Criminal Law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Can Attorney-Client Privilege Be Used As Both A Sword And A Shield? No, Not When Attorney-Client Privilege Is Being Used As A Litigation Strategy

Attorney-client privilege is a complex and often misunderstood aspect of discovery. This privilege generally protects a party from being compelled to disclose confidential correspondence between the party and the party’s attorney. The traditional purpose of attorney-client privilege is to serve as a shield to prevent a party from being forced to turn over the strategies, opinions, and work product of an attorney. However, it is possible, under the right circumstances, for a party to waive the privilege in order to prove a fact vital to the party’s case. Such was the circumstances in Cormack v. United States. In this case, the plaintiff claimed that a mail-sorting system used by the United States Postal Service (USPS) is infringing on his patent for the device. The USPS and the manufacturer of the mail-sorting system, Northrop Grumman, claimed that the mail-sorting system utilized by the USPS is an independent creation. The issue in the case became the date on which the plaintiff conceived the invention and whether that date was earlier than the date on which the USPS’s manufacturer conceived the invention. The defendant was able to prove conception of the idea in July 2004. The plaintiff proceeded to waive attorney-client privilege and disclose correspondence with his attorney regarding applying for a patent for the mail-sorting device dated November 2003. After the disclosure by the plaintiff, the defendant submitted a motion to compel the plaintiff to turn over all other documents being withheld under the guise of attorney-client privilege. The court stated that the proper standard for compelling privileged information is “all other communications relating to the same subject matter.” The court was particularly concerned with the concept of fairness stating, “the aim is to prevent a party from disclosing communications supporting its position while simultaneously withholding communications that do not.” In this case, the subject matter was determined to be all documents regarding the date of plaintiff’s conception of his mail-sorter idea. The plaintiff sought to maintain privilege for numerous communications between himself and his attorney both before and after the date a patent was filed for. The court stated that the plaintiff must disclose any documents regarding conception of the mail-sorter regardless of the date on which the communications were created. The court specifically stated, “[the plaintiff’s] privilege waiver to apply to communications related to the date of conception, date of reduction to practice, and due diligence, generated both before and after the filing of the patent application.” The court did however create a distinction between communications regarding applying for the patent and emails regarding defending the patent. The court also held that the plaintiff has no obligation to produce documents and communications attendant to patent prosecutions relating to the other topics. Emails between the plaintiff and his attorney leading up to the prosecution of the patent were also deemed to be protected by privilege. It is imperative to consider the evidentiary value of all documents relating to the same subject matter before waiving attorney-client privilege. If you seek to admit certain documents regarding a certain subject matter covered by attorney-client privilege, all documents relating to the same subject matter must also be turned over to your opponent. Courts are concerned with notions of fairness and will generally not allow a party to selectively waive privilege in order to use it as a sword and a shield. Before waiving privilege, separate documents into distinctions of subject matter, do not make arbitrary distinctions between documents. Then weigh the potentially beneficial and potentially harmful value of all the documents relating to the subject matter in question. Once the value has been determined, only waive the privilege if, on the whole, the documents are clearly beneficial. Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently Daniel is serving as a legal intern in the Juvenile Justice Clinic. After graduation Daniel will clerk for a trial judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here

What Happens When the Smoking Gun is Thrown in the Recycling Bin?

In January 2014, the Hon. Lawrence E. Kahn in the U.S. District Court for the Northern District of New York granted plaintiff Dataflow, Inc.’s motion for sanctions in a case regarding deleted email correspondence.  Sanctions took the form of the often-case-ending adverse inference, with the judge reserving on the specific language of the adverse inference jury instruction until trial.  Defendant Peerless Insurance Co. might not wait that long, as even the neophyte lawyer can tell when blood is in the water. Dataflow’s claim arose out of a discovery request for production of documents that “targeted, inter alia internal communications and investigations regarding Plaintiffs’ claim.” Dataflow, Inc., v. Peerless Ins. Co., No. 3:11-cv-1127 (LEK/DEP), 2014 WL 148685, *2 (N.D.N.Y. Jan. 13, 2014).   When the defendant failed to produce any internal communications responsive to the document request, the plaintiffs tried again.  After the plaintiffs submitted an even narrower request for production, the defendants still didn’t produce anything responsive. Perhaps smelling something fishy, Dataflow started taking depositions and asking questions about the internal communications at Peerless.  The plaintiffs quickly learned that email was routinely used to communicate about claims.  The emails that Dataflow already asked for.  The emails that Dataflow was told didn’t exist.  The plot thickens. Hon. David E. Peebles, the Magistrate Judge handling discovery in this matter filed a Report and Recommendation urging sanctions be granted and fees shifted.  The District Court, reviewing Judge Peebles’s ruling de novo determined that the Magistrate got it right—and that sanctions are appropriate. The court analyzed the facts of the case under the spoliation framework set forth in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002): On a motion for sanctions due to spoliation, the moving party must show that: (1) the party having control of the evidence had an obligation to preserve it at the time it was destroyed; (2) that party had a culpable state of mind; and (3) the destroyed evidence was of a nature that a reasonable trier of fact could find that it would support the moving party’s claim or defense. Dataflow, at *2 (citing Residential Funding Corp, at 107). Here, the duty to preserve for an insurance party was triggered when a claim was submitted.  As such, any internal communication regarding that claim is obviously supposed to be preserved.  The culpable state of mind can be inferred by the gross negligence displayed by email deletion resulting from a “system change.”  A “system change” that also conveniently “changed” the methods of preservation of documents related to paid and unpaid claims.  Finally, since the plaintiff was able to prove that the contents of the internal email conversations likely would have supported the plaintiffs’ theory of the case, sanctions in the form of an adverse inference just make sense. Perhaps it’s time for Peerless to have a “system change” with regards to their general counsel. Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015.  Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan. Want to read more articles like this?  Sign up for our post notification newsletter, here.

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    The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.

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    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

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