Authored By: Catherine Kiernan

Citation: Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan . 4, 2012)

Employee/Employer Implicated: Counsel; Client; Judge

e-Lesson Learned: Sanctions for spoliation are increasingly scrutinized by courts due to the question of what an original document is and whether they are foreseeably required in today’s increasingly technological age.

Tweet This: When Can a Doctor's Note Excuse You From Sanctions?

Not communicating effectively with clients and counsel about exactly what versions of documents are required for trial can be extremely detrimental, even putting important cases at risk for dismissal and harsh sanctions.  However, as in the case of Bull v. UPS, the increasingly technological nature of the world puts the validity these sanctions for “original” documents under increased scrutiny and cannot simply be applied to cases of inadvertent withholding when copies of the documents have been disclosed. In Bull, Laureen Bull sued UPS, seeking to be reinstated to her part-time job.  She was injured on the job a few months earlier, but after physical therapy and time off the company doctor deemed her still unable to lift the required 70 pounds for work and was dismissed by UPS shortly thereafter.  To get reinstated, Ms. Bull was told by her union representative to get an opinion from her own doctor, Dr. Farber, explaining that she could lift the required weight.

Authored By: Melissa L. DiPasquale

Citation: Lester v. Allied Concrete Co., Nos. CL.08-150, CL09-223 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011)

Employee/Employer Implicated: Counsel; Paralegal; Client; Employee

e-Lesson Learned: When a demand for discovery requests the contents of a party’s Facebook account, purposefully deactivating or deleting information to avoid responding to the demand can result in costly sanctions against both the party and their counsel.

Tweet This: Attempting to Erase Your Past on Facebook Can Cost You + Your Attorney in the Future

To delete or not to delete – that is the question Facebook users and their counsel must carefully contemplate when responding to eDiscovery requests.  Making the wrong decision can be costly for users and their counsel as was the case in Lester v. Allied Concrete Co.  In Lester, when served with a demand for the contents of his Facebook page, the actions of plaintiff and his attorney resulted in the Virginia Circuit Court of the City of Charlottesville imposing substantial monetary sanctions against both the plaintiff and his attorney.   In Lester, Isaiah Lester sued Allied Concrete Company and William Donald Sprouse seeking monetary damages for negligence and wrongful death.  Throughout the lawsuit, continuous disputes arose over discovery related issues.  Specifically, defendants sought the production of screen print copies of Lester’s Facebook account, including all of his pictures, message board, status updates, and messages sent or received.  Defendants attached to their request a photo of Lester holding a beer can while wearing a t-shirt with the logo “I ♥ hot moms,” which Lester’s counsel presumed was taken from his Facebook account.

Authored By: Edward J. Piasecki

Citation: Terraphase Engineering, Inc., et al. v. Arcadis, U.S., Inc. U.S. District Court for the Northern District of California

Employee/Employer Implicated: In-House and Outside Counsel

e-Lesson Learned: If counsel inadvertently receives an email containing privileged information, reads it, and fails to notify the sender, counsel may be disqualified.

Tweet This: Finders Keepers? What Not to Do With Inadvertently Received Privileged Information

Ever find something you knew did not belong to you, but kept it anyway? If you have, perhaps you did so under the guidance of the old adage “Finders keepers, losers weepers.” The adage can be applied in a multitude of ways to a variety of things. One of the more humorous situations in which this occurs is via the receipt of an inadvertently sent email. Perhaps a colleague, thinking he was writing to his wife, inadvertently sent you an email about shopping at Bed, Bath, and Beyond. Or perhaps another colleague inadvertently hit reply all to an email belittling his boss. If you have spent anytime in the workplace, scenarios like these are all too familiar. When you receive an email like this, it may be the greatest gift the office humor gods can bestow upon you and it must be opened immediately and maybe even saved to embarrass a colleague at some later date. Finders keepers, losers weepers right? Unfortunately, this is not always so. When legal counsel inadvertently receives an email with privileged information, finders keepers can have dire consequences.

Authored By: Frank Gonnello, Jr.

Citation: US v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)

Employee/Employer Implicated: Law enforcement officers and civillians.

e-Lesson Learned: Whether it's "pervasive mass surveillance of the public by law enforcement agents" or just a more efficient means to an otherwise-legal end, the question of whether warrantless GPS tracking violates the Fourth Amendment rights to a suspect's privacy will be answered soon by the US Supreme Court in U.S. v. Jones.

Tweet This: Supreme Court Deciding Whether to Occupy 1984 -- is your privacy at stake?

On November 8, the United States Supreme Court heard oral arguments for its review of U.S. v. Jones (U.S. v. Maynard), the Fourth Amendment-focused case which has garnered much attention in the news over the past few weeks. The issue before the Court is whether the warrantless use of a GPS tracking device by the police violates a defendant's Fourth Amendment rights.  However the implications of this decision can affect our privacy in Orwellian proportions. If you haven't yet heard, U.S. v. Jones is a tale of two District of Columbia night club owners, Antoine Jones and Lawrence Maynard, who went on trial for conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841 and 846. But while neither Jones nor Maynard deleted files, destroyed hard drives, nor compromised privileged electronic communications, their case has caught the attention of our site because the trial court admitted evidence acquired by the warrantlessuse of a Global Positioning System (GPS) device to track Jones' movements continuously for a month.

Authored By: Michael Tucker Jr.

Citation: ANZ Advanced Technologies, LLC v. Bush Hog, LLC, 2010 WL 3699917 (S.D. Ala. 2010)

Employee/Employer Implicated: Owner/Executive; Employee

e-Lesson Learned: It is important not to misrepresent the dates that documents were actually created because retyped “copies” are not actually copies. Once you go down this path, all your hard drives and storage devices can be physically analyzed and forensic images are just not good enough.

Tweet This: Forensic img of storage device insufficient when what you previously produced was a lie. Get Physical (Hard Drives)

On May 4, 2010, ANZ Advanced Technologies (plaintiff) was ordered to produce all hard drives and storage devices used by two of the company’s officers (Irfan Sheriff and Rakesh Vashee) for forensic analysis and ESI production.  ANZ moved to modify the order seeking to substitute forensic images of the devices for the devices themselves.  The court refused to allow the use of forensic images and mandated that ANZ turn over the physical storage devices   ANZ was forced to submit its devices for forensic analysis because of misrepresentations made about creation dates of various documents.  The court found that ANZ’s conduct cast serious doubt on the authenticity of any document it produced from the hard drives of any computers or other storage devices in the possession of Mr. Sheriff or Mr. Vashee.

Authored By: Michael Tucker Jr.

Citation: In re TMI Litig., 193 F.3d 613 (3d Cir. 1999)

Employee/Employer Implicated: Plaintiffs’ Counsel

e-Lesson Learned: Continuing non-compliance with expert discovery deadlines can result in the loss of a large and important part of your case. This is especially true when a court sets a drop deadline after a party has repeatedly taken advantage of its leniency.

Tweet This: Court Goes Nuclear on Deadline Desperados

This case arises out of the nuclear reactor accident that occurred at the Three-Mile Island Power Plant on March 28, 1979.  This 3rd Circuit decision was rendered more than 20 years after the incident and after a complicated procedural history that included multiple filings by thousands of plaintiffs in both state and federal court.  Congressional amendment of a statute finally allowed all of the cases to be consolidated in federal court.  The main issue decided on appeal was the district court’s exclusion of expert testimony, based on the gatekeeping standards of Daubert, which restricted plaintiffs’ ability to show that they were exposed to radiation sufficient to cause injury. The other issue on appeal was the award of sanctions for violations of pre-trial discovery requirements and orders.  As this is an eDiscovery blog, I will be addressing the discovery and sanctions issues rather than the voluminous and complex scientific matters that arose in this nearly 200 page decision.

Authored By: Gina Barbieri

Citation: Rubin v. Alamo Rent-A-Car, 593 N.Y.S. 2d 284 (2nd Dept. 1993)

Employee/Employer Implicated: Owner/Executive, Employee, Patient

e-Lesson Learned: Nonmedical information, not related to the diagnosis or treatment of patients is not protected under the physician-patient privilege in N.Y. C.P.L.R. 4504(a)

Tweet This: How dare that judge order you to incriminate yourself and pay for it! You shouldn’t have to pay for it...

In most personal injury cases it is not unusual for documents to be granted a protective order based upon physician-patient privilege. However, the courts are reluctant to offer protection of materials, which are key to the defense of a lawsuit. This is particularly true when parties to litigation are attempting to claim privilege for documents that would not naturally fall under that protection. The court is weary of medical professionals who abuse this privilege for their own financial gain. Sindey Rubin and his Wife Lucille Munion, appealed an order from the Supreme Court of Nassau County which directed them to release their medical practice’s financial records to opposing counsel. Mr. Rubin alleged he was struck and seriously injured by a vehicle rented from the defendant, Alamo Rent-A-Car. After initiating a lawsuit to recover for his personal injury, Rubin amended his complaint to include his wife as a party to the suit and to include damages for loss of business income as a second cause of action.

Authored By: Eric Abes

Citation: Costantino v. Herzog, 203 F.3d 164 (2nd Cir. 2000)

Employee/Employer Implicated: Judges

e-Lesson Learned: Staying dynamic, some courts are willing to expand rules in the face of new technologies.

Tweet This: Staying dynamic, some courts are willing to expand rules in the face of new technologies.

Law must be stable, and yet it cannot stand still. This quote from Roscoe Pound is the bare essence of this case and the primary challenge to the law in the face of new technologies. As written, the Federal Rules of Evidence provide an exception to the hearsay rule at 803(18) for “statements contained in published treatises, periodicals, or pamphlets.” But what happens to this rule when those same statements are not confined to paper but appear in other media forms such as audio or video files? What happens is the stable law has to be given a nudge forward by the courts so that it does not stand still. Our legislative system is designed to be slow. Great problems require slow and meticulous deliberation but in the end decisions have to be reached one way or the other.

Authored By: Drew Manary

Citation: Radian Asset Assurance, Inc. v. College of Christian Brothers of New Mexico (2010).

Employee/Employer Implicated: Plaintiff (Radian), defendant (College of Christian Brothers of New Mexico) and subsequent owner of defendant’s assets, Laureate Education, Inc.

e-Lesson Learned: If a defendant is compelled to produce unreviewed ESI, defendant shall have to pay for production but plaintiff shall pay for review. Additionally, if privileged information is transferred inadvertently from defendant to plaintiff, the defendant has burden of proving the information was privileged.

Tweet This: Forcing D's to pay for ct-ordered production isn't unreasonable, nor making them est. the inadvertent transf of privl. information

Radian initially filed suit against College of Christian Brothers in September 2009. Two days the filing, defendant (“College”) sold its assets to Laureate Education. As early as March 2010, College subpoenaed Laureate Education for materials obtained in the sale. In August 2010, College received 135 hard drives, 52 backup tapes, and an additional hard drive with information from Laureate Education’s current server. Radian and College had been to court several times over ESI. In September 2010, the Court ordered that College search and produce email from certain tape backups as well as producing 1,219 files Radian had assessed as relevant from Laureate Education’s current hard drive. The dispute in the present matter is whether College should be forced to restore the tape backups and review them at their own expense and whether doing otherwise constitutes unreasonable cost-shifting. Radian makes five arguments in support of this proposition.

Authored By: Jessica K. Rauskolb

Citation: F.T.C. v. First Universal Lending, LLC, 2011 WL 673879 (S.D.Fla.)

Employee/Employer Implicated: Outside Counsel, Miscellaneous

e-Lesson Learned: If you scrub the data off your computers, you can’t blame the other side for destruction of evidence. Your adversary does not have to make sure that you have information to establish your defense.

Tweet This: No Bad Faith? No sanctions. Especially not where the accused party never had control of the later scrubbed PCs

Don’t blame others for your mistakes! If you are given permission by a court appointed receiver to scrub relevant data off your computers to eventually sell them, you can’t blame the other side for spoliation of relevant data that you need to establish your defense - especially not if the other side never had control over the computers with the relevant data! You will not be able to succeed, just ask the defendants in F.T.C. v. First Universal Lending, LLC. In F.T.C. v. First Universal Lending, the F.T.C. investigated the defendants for their mortgage modification practices by alleging that defendants had violated the Federal Trade Commission Act and that defendants had acted in violation of the Telemarketing Sales Rule. For the duration of the investigation, the court appointed a temporary receiver who took control of defendants’ business premises.