e-Lessons Learned

In 2007, Bill R. McMillen, Sr., was rear-ended by Defendant Wolfe during a cool down lap in a stock car race. He later filed suit to recover damages for the following allegedly sustained injuries: possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life.

In 2010, after viewing the part of plaintiff’s Facebook account that was available to the public, Defendant Hummingbird filed for an order compelling the plaintiff to disclose his Facebook and MySpace user names and passwords. This request was based on public comments regarding the plaintiff’s fishing trips and trip to the Daytona 500. The defendants wanted to “determine whether or not plaintiff [had] made any other comments which impeach and contradict his disability and damages claims,” or more plainly stated: “we want to make sure this dude isn’t lying.” Continue reading »

Legal counsel for both parties left the judge frustrated from unprofessional conduct and lazy discovery techniques. Judge Hollows stated, “In the future, the court will decline to hear any discovery matters where the Federal and Local Rules are not strictly followed.” So, when it comes to electronic discovery being strictly followed, keep in mind the following: 1) address the issue EARLY; 2) keep documents in easily accessible format; and 3) supply metadata for pivotal documents.

In the facts, Brinckerhoff worked for the Town of Paradise as a volunteer firefighter. Subsequently, she was appointed to a civil service position and eventually terminated. She brought suit for wrongful discrimination and requested documents in their original format. Included in the documents was an evaluation of plaintiff while she worked for the Town.

In Plaintiff’s motion to compel, she argued that defendant should be required to produce responsive emails in their native format (not hard copy).

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Some people think that when you delete a file off of a computer it is gone forever. The truth is that it still exists on your computer, and deleting a file is more akin to removing a note card from a card catalog at the library. The book still exists, it is just much more difficult to find. The same is true of files, and one court has found that even deleted files are subject to discovery orders and sanctions can be issued for destroying them.

In TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009), plaintiffs, TR Investors, LLC (“TRI”), sought sanctions against defendant, Arie Genger, for using software that deleted files in violation of an existing discovery order.

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