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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.

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New to the eDiscovery world?

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Court Punishes Dishonest Defendant with Sanctions, Default Judgment, and Dismissal

In the mood for a judicial tongue-lashing?  All you have to do is disobey a court order, destroy evidence and lie under oath.  By means of factual background, Plaintiff Pacific Packaging is a distributor of packaging products.  Defendants James Barenboim, Andrew Slater, Steven Slater, and David Guild were salesmen at Pacific Packaging until they each resigned on October 15, 2009.  After leaving Pacific Packaging, the defendants formed Packaging Partners and began operating the very next day, October 16, 2009.  Sandra Zeraschi was a sales correspondent at Pacific Packaging until she resigned and went to work with Defendants at Packaging Partners the day they began operating.  On November 4, 2009, Pacific Packaging filed a complaint and sought an order for expedited discovery and for the preservation of evidence, sensing something fishy about their new competitor.  Judge Inge allowed the plaintiff’s motion for expedited discovery and ordered the production of several documents, certain depositions, preservation of relevant ESI, and within five days, the provision of any and all computers, laptops, removable storage and other devices used in connection with the Defendant’s businesses to plaintiff’s counsel and experts for examination and copying.  On February 2, 2012, Plaintiff moved for a preliminary injunction requiring Defendants to turn over all Pacific Packaging documents and barring the defendants for one year from making sales to any of the Pacific Packaging customers for which the defendants had taken information which Pacific Packaging asserted was confidential.  At the preliminary injunction, Judge Billings found that the defendants had misused information of Pacific Packaging in recruiting or selling to Pacific Packaging customers.  After testimony by the defendants claiming to have complied with the order for expedited discovery, Judge Billing enjoined Defendants for one year from selling certain products to certain customers. After Ms. Zeraschi resigned from the newly formed Packaging Partners, her eligibility for unemployment benefits was questioned which led to her ultimately submitting an affidavit in support of the plaintiff’s motion for judgment on all claims based on the defendants’ fraud on the court.  In her affidavit, Ms. Zeraschi confessed to removing “account records, price lists, and quotations for various customers” which were later offered to the the defendants.  Ms. Zeraschi also admitted to observing the Defendants using Pacific Packaging Sales History Reports as well as vendor information.  Most harmful to the defendants, Ms. Zeraschi reported that there were emails between the defendants indicating that certain documents had not been turned over as part of document production. Subsequently, the court ordered forensic analysis of Defendants’ computers and other devises and instructed the the defendants to turn over all computers and devises used for business purposes to the court.  Defendants appeared to comply by turning over various devises for imaging and providing affidavits indicating compliance.  Once the plaintiff alleged that the defendants were in contempt of the provision of preliminary injunction, however, Defendants’ misconduct came to light.  Although Defendants claimed to have “misunderstood” Judge Billings’ order, Superior Court Judge Bruce Henry did not find these claims credible.  Instead, Judge Henry found that “the defendants deliberately and willfully violate the terms of the injunction” by continuing to sell certain products to certain of Pacific Packaging’s former customers.  Judge Henry also found several other deliberate acts of misconduct.  These included the defendant Slater’s deletion of hundreds of e-mails from his Yahoo! Account, the continued use of devises that should have been handed over to the court, and the concealment of specific confidential documents. Thus, the court found the defendants in contempt of court.  This contempt was premised on the information that “Defendants deliberately sold items… that were barred by the prohibition.”  The Plaintiff had therefore established by clear and convincing evidence that there was “a deliberate, clear, and undoubted violation of the clear and unequivocal order of Judge Billings.” Furthermore, the court found that the “defendants spoliated evidence which they knew or reasonably should have known might be relevant to this matter.”  This spoliation occurred in several ways: the sales orders that Ms. Zeraschi took when she left Pacific Packaging were never produced, Defendant Andrew Slater deleted hundreds of e-mails without making copies, and the defendants failed to ever produce USB devices and other devices presumably used in the course of their business.  Judge Henry also found that the defendants had committed a fraud on the court.  Like the spoliation of evidence, this fraud was also evidenced on several occasions: untrue assertions in affidavits, deletion of e-mails, misrepresentations, failure to produce devises, deliberately false affidavits, and deliberately misleading statements at the preliminary injunction hearing. “All of these acts by each of the individual defendants,” the court ruled, “‘sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate this matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”  The spoliation of evidence, the misrepresentations in affidavits and in sworn testimony, the suppression of documents and other evidence, and the deliberate violation of the injunction all show “a blatant disregard for the judicial process and a disrespect of this court and its orders.” Because the Defendants committed fraud upon the court, spoliated evidence and deliberately ignored the preliminary injunction, Judge Henry found that sanctions were appropriate.  Accordingly, Judge Henry found that the appropriate sanctions here are the entry of default as to Defendants with respect to some of the issues in some of the counts of the verified amended complaint; the dismissal of the Defendants’ counterclaims; and an order that the Defendants compensate the plaintiff for the attorney’s fees and costs incurred by the plaintiff in litigating the present motion. 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.

Copying Documents = Conversion?

Prior to this case, Quintero Community Association (hereinafter “QCA”) sued Hillcrest Bank (hereinafter “HB”) under a variety of legal theories after plaintiffs sustained a loss in their investment. This is the only claim that remains. It is a claim of conversion, meaning that QCA is alleging that HB improperly took control of QCA’s property. The issue is that during an investigation into HB’s lending practices by the FDIC, an HB employee made a copy of all HB’s loan records on a portable harddrive. This employee also made a portable harddrive copy for HB’s own records. Later, the president of HB instructed the same employee to make yet another copy for HB’s attorney. QCA claims that HB violated its rights by making copies of its loan records. HB moved for summary judgment, claiming that QCA has no property interest in its records and that even if it did; HB’s copying of the records did not deny QCA its right of possession. In order to prevail on a conversion claim, plaintiff must prove that, “(1) it possesses a right in the goods or personal chattels; and (2) that the defendants exercised control over the goods or chattel to the exclusion of the plaintiff's right.” The court held that QCA does not have a property interest in HB’s records. The court reasoned that with intangible records, the plaintiff must have a present property interest in them, but here QCA merely has a right to privacy and no present property interest.  The court further ruled that HB never exercised exclusive possession over the bank records. Thus, even if QCA held a property interest in the records, HB’s actions do not constitute conversion because HB’s actions never interfered with QCA’s alleged rights to the documents. HB never asserted control over the documents in a way that excluded QCA from accessing them. QCA also argued that it is entitled to an adverse inference based on defendant’s alleged spoliation and in the alternative that it should be granted leave to amend its complaint to include a spoliation claim. The basis for the adverse inference claim is that HB allegedly encrypted the portable hard drives with the loan information in order to prevent QCA from accessing them. “[A] presumption of spoliation only arises when there is evidence of “intentional destruction indicating a desire to suppress the truth.” The court found that QCA did not meet its burden in demonstrating intentional destruction. Further, the court denied plaintiff’s request for leave to amend because it was not filed until two months after discovery closed, it would require further discovery and fees to be incurred by defendant, and the amendment would be futile.

Inadvertent Disclosures: Who Benefits?

Plaintiff Steve Pick filed suit against Defendant City of Remsen (and other defendants) alleging, among other claims, violations of constitutional rights pursuant to 42 U.S.C. § 1983. Pick served the city with a discovery request. The city then produced 440 pages of documents, including 183 pages of e-mails. Some pages contained more than one email. The defendant’s inadvertently disclosed an email that was originally sent to six privileged recipients. Within thirty-four minutes of discovering that the email had been inadvertently produced, defense counsel contacted the plaintiff’s counsel. Defense counsel explained that the email was mistakenly produced and was protected by attorney-client privilege. Defense counsel asked that the email be destroyed. The plaintiff’s counsel refused. Defendants’ filed a motion request that the court order the email’s destruction as an inadvertently produced privileged document. Applying the middle-of-the-road approach, the Magistrate Judge held Defendants had not waived attorney-client privilege by the inadvertent disclosure, and ordered the email to be destroyed. Plaintiff appealed. Plaintiff objected to the analysis of the Magistrate Judge conducted pursuant to the middle-of-the-road test. The District Court recognized that three approaches have been developed to analyze inadvertent disclosures of privileged information. Including the lenient approach, the strict approach, and the middle-of-the-road approach. Having already held that the middle-of-the-road approach applies in diversity cases, the court held that the middle-of-the-road approach also applies in federal question cases. Furthermore, the court applied a “clearly erroneous or contrary to law” standard of review Pursuant to the middle-of-the-road approach, the court considers five factors in determining whether the inadvertent disclosure waived attorney-client privilege. The factors are as follows: 1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production; 2) the number of inadvertent disclosures; 3) the extent of the disclosures; 4) the promptness of measures taken to rectify the disclosure; and 5) whether the overriding interest of justice would be served by relieving the party of its error. Plaintiff objected to the Magistrate Judge’s analysis under the first, third, and fifth factors. Plaintiff objected to the Magistrate Judge’s conclusion that defense counsel took reasonable precautions prevent disclosure, alleging that defense counsel’s failure to create a privilege log was unreasonable, the privileged email was not inconspicuously located among non-privileged emails, and defense counsel’s review process—being the sole reviewer—was unreasonable. The court held that defense counsel’s failure to prepare a privilege log was not unreasonable because defense counsel’s review of the responsive documents did not reveal any privileged information. Further, the court held that the Magistrate Judge correctly concluded the privileged email to be inconspicuously located among non-privileged documents. The privileged email was located on the same page as a non-privileged email. Moreover, the privileged email was located on two pages of the 183 pages of emails, and 440 total pages of documents, produced. Likewise, the court found defense’s counsel’s review process to be reasonable. It is reasonable for an attorney to review discovery responses without non-lawyer staff. Thus, the court upheld the Magistrate Judge’s determination that first factor weighed in favor of maintaining the email’s privileged status. Although the Magistrate Judge found the third factor to weigh in favor of waiver of the attorney-client privilege, Plaintiff objected to the factual finding that the privileged email was disclosed to not others. The plaintiff alleged that the privileged email was disclosed to its six recipients, thereby increasing the extent of the inadvertent disclosure. However, the court noted that the plaintiff ignored the Magistrate Judge’s conclusion that the six recipients were privileged recipients. Thus, the Magistrate Judge’s factual determination as to the extent of the disclosure was not clearly erroneous. Finally, the plaintiff objected to the Magistrate Judge’s conclusion that the plaintiff would not suffer unfair prejudice by maintaining the email’s privilege protection. The court upheld that Magistrate Judge’s finding that the plaintiff had other evidence he intended to rely on by virtue of the fact that the plaintiff progressed with action for over nine months with out the benefit of the privileged email. The court also upheld the Magistrate Judge’s conclusion that the plaintiff could not reasonably rely on the privileged email to support his case because any attorney reviewing a document production with a large number of non-privileged documents would realize that the disclosure was inadvertent. Further, the court quoted the Magistrate Judge’s holding that “‘absent the mistaken disclosure, Pick and his attorneys would not know and would not have the right to know, the contents of the [email].’” Therefore, “the interest of justice would be harmed hereby permitting Pick to use the email at trial.” There is no real harm in zealously representing your client’s interest after inadvertently receiving privileged information. Plaintiff’s attorney correctly chose to find a way to strip the email of its privilege protection in order to use the email to support the plaintiff’s case. However, attorneys should recognize an argument in favor of waiver of attorney-client privilege may be futile in instances similar to the facts above.       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.

What Should Related Foreign Entities Do When Facing Spoliation Sanctions After Providing The SEC With A Complete Image Of Its Corporate Servers? Comply With Court Orders.

Regulatory leviathan incompetency may lead to preclusion sanctions. But this doesn’t matter if the sanctions preclude two directors of alleged foreign shell entities from “offering testimony, affidavits or declarations in connection with a dispositive motion or trial,” and the sanctions are partially based on the very same two directors’ refusals to offer such testimony, affidavits or declarations in connection with depositions. In other words, the defendants have no interest in testifying, are being reprimanded for not testifying, and their punishment is to preclude them from testifying. (“Continue Reading…”) Here, the SEC froze the assets of more than a half-dozen entities which conduct business from Hong Kong based on pyramid scheme allegations. Prior to the freeze, at least a few of the defendant entities used third-party vendors to control their IT departments and these defendants were no longer capable of paying the outside vendors, post-freeze. During the course of discovery, the defendants, now without an IT department, provided the SEC with a “complete image of all information maintained on the corporate server”. Next, the defendants, fearful of adverse action by authorities in their own nation, refused to attend depositions and instead offered to attend remote videoconference depositions. Soon thereafter, the leviathan sought sanctions for spoliation, which were later recommended. Months later, the incompetent SEC figured out how to read the original hard drive provided during discovery, which had been in the SEC’s possession the entire time. The preclusion sanction still stands because the defendants did not comply with the court order to attend the depositions. In the future, if you’re a foreign businessman who finds yourself under the SEC’s radar, remember to formally request depositions to be electronically conducted, formally request asset freezes to be lifted so your third party vendor can assist the incompetent SEC to understand the information you provided in discovery, or ignore the laws of your home state, put your entire family in jeopardy, and attend the deposition. Law Suit Exposer, a Seton Hall University School of Law student (Class of 2016), focuses his studies in the area of NJ foreclosure defense.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Convenience Stores Are Not Convenient

Court will grant sanctions for discovery transgressions. In this action, convenience store franchisees sued their franchisor for breach of franchise agreements because the franchisor attempted to end franchises. Some of the stores filed to have to 7-Eleven sanctioned for discovery transgressions and moved to strike 7-Eleven’s answer. Regarding discovery, the Magistrate Judge held an appropriate sanction against the franchisor for violation of the rule governing signing disclosures and discovery requests, requests, responses, and objections was admonition regarding the violation and that similar conduct would be addressed more harshly in the future. The Court found that 7-Eleven’s conduct caused “substantial case management and discovery problems”, but the Court did not hold 7-Eleven to “harsher” sanctions because the Court recognized that the Plaintiffs conferred with 7-Eleven to resolve their disputes, rather than going to court, which should be a last resort. Also, the Court did not think that 7-Eleven meant to hold onto relevant discovery, showing good faith on 7-Eleven’s behalf. Consequently, the Court ordered an appropriate sanction for 7-Eleven’s failure to comply with the court order, which was the reimbursement of franchises for fees and costs incurred to obtain discovery, as their “resources were strained by unnecessary and incessant discovery disputes.” This shows that being perhaps too aggressive during discovery could land you in the land of sanctions. Amanda, a Seton Hall University School of Law student (Class of 2016), focuses her studies in the area of family law. She is the Secretary of the Family Law Society and headed Seton Hall Law’s first involvement with National Adoption Day in November 2015. After graduation, Amanda will be clerking for a Superior Court Judge in the Family Division in New Jersey. Before law school, Amanda earned a B.A. from Penn State with a major in Communication Arts & Sciences and a Minor in Dispute Management and Resolution. In her spare time, Amanda enjoys participating in 5k and 10k races. 

Can One Government Agency Be Sanctioned For the Deletion of Emails That Belong to Another Government Agency?

In Wandering Dago Inc. v. New York State Office of General Services, Judge Randolph F. Treece, writing for the United States District Court for the Northern District of New York, held that officials in one state government agency cannot be sanctioned for the destruction of emails belonging to another government agency.  The facts in Wandering Dago are relatively lengthy: in July 2013, the Plaintiff, the owner of a food truck, applied to be a food vendor at a race course owned by the New York Racing Association (“NYRA”).  The Plaintiff’s application received several complaints, including an email that Bennett Leibman, the New York Deputy Secretary of Gaming and Racing, sent to the President of the NYRA.  In his email, Mr. Leibman indicated that the name of Plaintiff’s truck, “Wandering Dago,” was likely to offend members of the public.  Earlier in the year, the Plaintiff was denied an application to be a vendor for the New York Office of Governmental Services’ (“OGS”) Empire State Plaza Lunch Program for similar reasons.  On July 22, 2013, news stories emerged, stating that an “unidentified state official” had complained to the NYRA.  On the same day, Mr. Leibman sent an email to several members of the Governor’s Executive Chamber to alert them of the reports.  Ultimately, the OGS rejected the Plaintiff’s application and the Plaintiff sued the NYRA and OGS for violation of his First Amendment right to free speech and Fourteenth Amendment right to equal protection.  The Plaintiff, however, did not initially name Mr. Leibman, the New York State Gaming Commission, or any members of the Governor’s Executive Council, as Defendants.  Mr. Leibman subsequently sent an email to the Governor’s Executive Chamber stating that he “may be a witness to the suit.” In October 2013, Mr. Leibman’s emails were deleted in accordance with a New York State email retention policy which automatically deleted emails older than 90 days.  Several months later, in May 2014, the Plaintiff added Mr. Leibman as a Defendant.  Mr. Leibman requested to be represented by the New York Attorney General (“NYAG”) and a litigation hold was instituted within the Governor’s Executive Chamber.  Unfortunately for the Plaintiff, however, by then, Mr. Leibman’s emails had been long gone.  The Plaintiff sought sanctions against OGS arguing that the NYAG, which represented OGS, had a duty to preserve Mr. Liebman’s emails, as well as emails that emerged from the Governor’s Executive Chamber.  To support his argument, the Plaintiff pointed to the July 22, 2013 email from Mr. Leibman to the Governor’s Executive Chamber, and contended that the email demonstrated a “coordination effort” between the various state officials in the “multiple arms of State government.” Despite the Plaintiff’s argument, Judge Treece remained unpersuaded.  Judge Treece began his analysis by stating that a party seeking an adverse inference instruction must establish: (1) that the other party had control over the evidence and had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.  Judge Treece held that the Plaintiff met none of these requirements. First, Judge Treece held that the Defendants at the time litigation was instituted (OGS and NYRA) had no control over Mr. Leibman’s emails nor the emails of the Governor’s Executive Chambers and, therefore, had no duty to preserve them.  The Court rejected the Plaintiff’s “multiple arms” contention, noting that if the Court held that there was a duty, it would basically create a state-wide duty for every New York agency to preserve its documents whenever another New York agency is sued.  Judge Treece went on to state that Mr. Leibaman only had a duty to preserve once he was added as a Defendant and, although he knew he was likely to be called in as a witness, this was insufficient to establish a duty for him to preserve before he was added.  Furthermore, although the NYAG represented both Mr. Leibman and the original Defendants, the Court stated that the NYAG did not have a duty to preserve Mr. Leibman’s emails until it was notified that an action has been filed against him. Next, Judge Treece examined the culpability requirement.  Judge Treece stated that this factor is satisfied when there is a showing that the evidence was destroyed “knowingly, even without intent to breach a duty to preserve [the evidence], or negligently.”  However, the Court held that there was no such evidence in this case and, therefore, the culpability requirement was not met.  Furthermore, the Court noted that even if the Plaintiff could show culpability, he nevertheless failed to show a duty to preserve and, therefore, there was no breach of the duty to preserve. Finally, Judge Treece addressed the relevance factor.  To show relevance, the Plaintiff must show sufficient evidence from which a reasonable trier of fact could infer that the destroyed evidence would have been favorable to the party seeking the adverse inference.  The Court held that the Plaintiff failed to establish that the evidence would have been favorable to him. Wandering Dago is significant due to its holding that one government agency cannot be sanctioned for the destruction of emails belonging to another.  In light of the holding in Wandering Dago, plaintiffs suing state agencies should be particularly mindful of which agency they are suing and do a detailed inquiry to determine which other agencies may be involved and which may have needed e-documents.  If they add a government agency as a defendant after litigation has commenced, it may be too late to save crucial evidence from deletion and the plaintiff may not be able to obtain sanctions for that deletion. Peter received his B.A. in Criminal Justice, cum laude, from Rutgers University in 2010 and will receive his J.D. from Seton Hall University School of Law in 2016.  Peter is the Senior Notes Editor of the Seton Hall Legislative Journal and will be clerking for the Honorable Sallyanne Floria, Assignment Judge of the Superior Court of New Jersey, Essex Vicinage, upon graduation.

What are the Relevance and Mens Rea Requirements for Spoliation Sanctions?

Should negligent destruction of evidence and intentional destruction of evidence be punished the same? That is one of the issues brought up in Alter v. Rocky Point School District. This case involves Lisa Alter (“Plaintiff”), a former second grade teacher and Principal, suing her former employer, Rocky Point School District (“Defendant”), for workplace discrimination.  The first discovery dispute arose when the Plaintiff filed its first motion to compel discovery on October 1, 2013.  Plaintiff sought to compel discovery of ESI, specifically emails between employees of Defendant.  The Court granted Plaintiff’s motion. Subsequently, Plaintiff filed a second motion to compel discovery and for sanctions.  Plaintiff alleged that Defendant did not comply with the Court’s instructions.  Plaintiff argued that sanctions should be imposed against Defendant for: (1) failing to properly institute a litigation hold; (2) failing to complete a good faith search of ESI; (3) failing to sufficiently oversee ESI searches; (4) and for spoliation of evidence. The main issue in this case was whether the Court would impose sanctions on Defendant for spoliation of evidence.  A party seeking sanctions for spoliation of evidence has the burden of establishing: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support the claim or defense. In Alter, the Plaintiff clearly established the first element.  It was clear that Defendant had an obligation to preserve the evidence at the time it was lost.  The Plaintiff was seeking emails between Defendant’s employees.  Defendant, however, failed to institute a litigation hold until nearly two and a half years after the Plaintiff filed her Notice of Claim in November 2010.  As to the second element, however, the Court was not convinced that the Plaintiff established that the records were destroyed with a culpable state of mind.  The Court did find it “especially troubling” that the Defendant did not institute a litigation hold until nearly two and a half years after the initiation of Plaintiff’s lawsuit. The Court was clear that the Defendant was negligent in failing to preserve discoverable information.  That being said, the Court was also clear that negligence is not enough to prove a culpable state of mind.  The Court found that the Defendants’ actions, while negligent, were not intentional.  As a result, the Court concluded that there was no intent to spoliate material evidence.  Plaintiff also failed to establish the third element of her spoliation claim.  The third element requires that the lost information be relevant to the party’s claim.  Plaintiff failed to set forth, with any degree of specificity, that the lost materials would have been relevant or helpful to her claim.  Relevance cannot be established solely on the basis of conjecture.  Here, Plaintiff failed to meet her burden to set forth specific facts to support her claim.  The Court here found that there was no spoliation of evidence.  Despite the finding of no spoliation, the Court was still troubled by the actions of the Defendant and the actions of Defendant’s counsel. As a result, the Court imposed a monetary sanction of $1,500 to be borne equally by Defendant and the law firm that represented Defendant at the initiation of the lawsuit. Kevin received a B.A. in History from Princeton University in 2012.  He will receive his J.D. from Seton Hall University School of Law in 2016.

Document Refinement and its Apparent Prejudices

On December 16, 2015, the Honorable Susan D. Wingenton granted GDC’s Motion to Quash Defendants William Baroni and Bridget Kelly’s subpoena duces tecum, which asked the GDC to produce “Any and all handwritten or typed notes, stenographic transcripts and audio and/or video recordings of witness interviews conducted by Gibson Dunn during its representation of the Office of the Governor of New Jersey from on or about January 16, 2014 to the present.”  Defendants also included a request to produce any and all metadata and document properties for all typed notes and interviews as well.  In her Opinion, Judge Wingeton took certain issue with the ethically questionable document preparation methods of the GDC, yet ultimately decided to grant the Motion to Quash.  The GDC had a somewhat perplexing response to Defendant’s first requests as to notes, transcripts and recordings of witness interviews conducted by the GDC during its representation of the OGNJ.  They claimed that no such materials currently existed.  Here, the GDC deviated from normative interview information collecting techniques; here witness interviews were summarized electronically by one attorney while the interviews were being conducted and then edited electronically into a single, final version.  This differed greatly from their former methods of practice, where contemporaneous notes were taken by GDC interviewers and that those notes were preserved after the summaries were completed.  By contrast, the GDC clearly intended that contemporaneous notes of the witness interviews and draft summaries would not be preserved, as they were overwritten during revisions and in preparing the final summary.  The Court found this to be “unorthodox” at the least, and noted its disapproval of their actions, likening them to have the same effect as deleting or shredding documents.  Unfortunately, however, the Court had no reason to doubt the GDC’s honesty with respect to their methods or their responses to Defendant’s request for documents.  The Court did sympathize with the both Baroni and Kelly, but granted the motion anyway. It is clear to see that the GDC’s actions, though ultimately condoned by the Court, were not done with the intent to deliver a full and honest discovery of the requested materials.  While the Court may have deemed such actions as legal, GDC’s document preparation methods raise many ethical implications, and could have clearly been used to destroy important information that Defendants here were entitled to.  Indeed, this method of refining interview summaries and information could have easily omitted details the defense may have found useful.  Doing so did not provide the defense with the transparent information they should have received by request; instead they had to make due with the GDC’s white-washing of the information.  In all, the GDC should have been more responsible and fair with the way it conducted and kept record of it’s interviews. This method of refining information can only seek to unfairly hurt their opposing counsel.  Garrett Keating received his Bachelor’s degree from Trinity College (2011) and majored in both Political Science and Public Policy and Law; he will receive his J.D. from Seton Hall University School of Law in 2016.  He has worked primarily in the legal fields of Medical Malpractice, Personal Injury, and Class Action law

When Will Protective Coding Finally See Its Day In Court?

The Southern District of New York Magistrate Judge Peck may have changed the way attorneys view discovery procedures forever. In an unprecedented ruling, Judge Peck held in Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012) that technology assisted review (“TAR”) is “an acceptable way to search for relevant ESI in appropriate cases.” To follow up this historic step, Judge Peck ruled again in 2015 that TAR is appropriate and should not be discouraged or held to a higher standard that could deter parties from using this cost and time-effective tool. TAR uses technology and statistics to determine which documents or data will be relevant to the subject matter of the case at hand. If the topic or issue is “attorney-client privilege regarding a work-monitored email address,” for example, the system would scan a large number of documents or a sample size and find all documents bearing the relevant information. This allows the producing party to save time and cost if personnel required to scan that many documents the same amount of time. In the 2014 Tax Court case Dynamo Holdings Ltd. P'Ship v. Comm'r of Internal Revenue, 143 T.C. 9, 2014 WL 4636526 (T.C. Sept. 17, 2014), opponents of this system argued that incomplete responses to discovery are inevitable. To that complaint, the court in that case found that the party may simply file a motion to compel if that belief is supported, a notion with which Judge Peck agrees. “In, essence, what the parties are asking the Court to consider [is] whether document review should be done by humans or with the assistance of computers.” The more prominent question presented to Judge Peck in Rio Tinto was the level of transparency and cooperation required from the parties “with respect to the seed or training set(s).” The training or seed sets are the sample set of documents used to code the entire set and label documents as relevant or irrelevant to the case.  Judge Peck suggested that the producing party turn over the entire seed set, regardless of the label, to ensure transparency and function as the potential resolution to this uncertainty. Currently, there is a debate amongst courts as to whether the seed set should be ordered to be produced, or whether the parties must generally agree to such production. The Judge was of the opinion that even this debate could be put to rest with a few cooperation-based measures, stating that “requesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as non-responsive.” While the Rio Tinto court did not decide on the actual transparency rules because the parties stipulated to TAR use, the Court noted that it was important to opine on this matter for future cases, as TAR is a valuable tool in e-discovery procedures. Going forward, it will likely become necessary for courts to rule on whether or not TAR may be compelled and in what way. It is foreseeable that cases involving high levels of distrust among parties will lead to such an opportunity. Svjetlana Tesic is a magna cum laude graduate of Montclair State University, where she received her B.A. in Jurisprudence, with a minor in Business. She will receive her J.D. from Seton Hall University School of Law in 2016, where she serves as Student Bar Association President and is a member of the Moot Court Board. After graduation, Svjetlana will clerk for a trial judge of the Superior Court of New Jersey in the Passaic County Vicinage. 

When Are Parties Entitled to “Sample” Private Social Media Activity to Uncover Probative Evidence?

In this case, the plaintiff sued her former employer for violating the Fair Labor Standards Act by requiring her to work forty-eight hours a week without an uninterrupted lunch break, and only compensated her for forty hours per week. In order to rebut these allegations, the defendants requested, among other things, the plaintiff’s Facebook account information during the relevant time period. When the plaintiff refused to comply with the request, the defendant sought relief from the court for an order compelling her to produce the following discovery: Using the ‘Download Your Information,’ feature or other comparable technique, produce a complete history of your Facebook account, including without limitation all wall posts, status updates, pictures, messages, communications to or from your account, and any other content displayed at any time on your Facebook account. The defendants argued that this information was necessary for two reasons: 1) to prove the plaintiff was engaged in non-work-related activities during the time she claimed to be working, and 2) to disprove the plaintiff’s emotional distress claim. As to the first purpose, the court held that the defendants were not able to support their position that a broad inspection of the plaintiff’s social media account was reasonably calculated to lead to the discovery of evidence demonstrating where the plaintiff was during the hours she claimed to be working. “Defendants have not made a sufficient predicate showing that this broad class of material is reasonably calculated to lead to the discovery of evidence establishing Plaintiff's whereabouts during the Relevant Time Period.” However, the court agreed that the discovery of limited social media information was permissible to uncover activity relating to the plaintiff’s emotional distress and any potential alternative causes of that distress. Therefore, the court order the plaintiff to produce “a sampling of Plaintiff's Facebook activity for the period November 2011 to November 2013, limited to any specific references to the emotional distress Plaintiff claims she suffered in the Complaint, and any treatment she received in connection therewith.” (internal quotations omitted). The court also ordered the plaintiff to preserve all of her Facebook account information for the duration of the litigation because the defendants were permitted to request the rest of the plaintiff’s Facebook activity after reviewing the sampling if they discovered probative evidence. Danielle is a third year student at Seton Hall University School of Law (Class of 2016). Prior to law school, she graduated magna cum laude from The College of New Jersey, where she earned her B.S. in Criminology with a minor in Arabic. After graduation, Danielle will clerk for a civil judge in the Superior Court of New Jersey.

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