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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.

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

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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

Watch Out, Facebook Posts and Texts Can Be Discoverable Material!

In this case, the Plaintiff Ms. Veronica Painter is suing her employer, Defendant Aaron Atwood, D.D.S. Painter claimed that while she was at work, the dentist climbed on top of her with his pants down and held her down. Painter suffered extreme emotional distress as a result. The defendant argues that he merely tickled her and that they had a consensual sexual relationship. The discovery issue in this case arises because the defendants asserts that the plaintiff and her two main witnesses intentionally destroyed text messages and Facebook posts that contradict the plaintiff's claims and deposition testimony. Specifically, the defendants allege that while the plaintiff was employed at Urgent Dental, she posted Facebook comments and pictures regarding Urgent Dental and the Atwood’s, including comments about how much she enjoyed her job, how Urgent Dental was a great place to work, and how Dr. Atwood was a great boss and she enjoyed working with him. The defendants assert that they know these posts existed because Dr. Atwood's wife, Kelly Atwood, was friends with the plaintiff on Facebook at the time.

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Not a Party To the Case? You May Still Have to Preserve.

Deciding what should be preserved and who should preserve it can be difficult when litigation first begins.  However, do not be fooled.  A party can feel the wrath of the Courts if an interested non-party fails to preserve information leading up to trial. In the case of Pettit v. Smith, the court found that a state agency had a duty to preserve evidence even though the agency was not a party to the case.  This case involved a claim of excessive force by an inmate against the alleged attacking officer, supervising officers, and the state of Arizona.  However, it did not include the agency that oversaw the state prison, which is referred to as ADC.  The plaintiff claimed that the defendants and ADC should have taken measures to preserve evidence once they had notice of the litigation.  On the other hand, the defendants claimed that ADC had control over the missing evidence, and the defendants should not be held responsible for the disappearance of evidence they did not control.

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Expert Reports: When Must You Disclose?

When Robocast saw the new UI (user interface) for the Microsoft Xbox 360 “Video” and “Home” channels, Windows 8 Xbox Music Box software, Bing.com, MSNBC.com, and MSN.com, all which utilized a video playlist or a changing tile function, they thought “hey, we have the patent on that UI.” While there are many nuances contained within this case as to the characteristics of each company’s UI, the important point to take away from this is that Robocast saw something in the Microsoft UI that they believed fell under a patent they had filed in 2006. Basically, Robocast saw that the new Microsoft UI operated in the same form and function as that which Robocast had previously patented. Therefore, Robocast brought suit for patent infringement against Microsoft. This case is fraught with technical jargon and in depth explanations of the video playlist and changing tile functions employed by each company’s UI. However, this is an electronic discovery blog so I will give you what you came for. The electronic discovery issue presented itself in this case in the form of an expert report. Robocast had retained Professor James T. Berger to gather information and prepare reports regarding relevant information so that he would be able to form an opinion and testify as to the amount of damages owed to Robocast by Microsoft.

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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. 

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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.

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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.

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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.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg


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