Citation: Einstein v. 357 LLC, 2009 WL 3813777 (N.Y. Sup. Oct 21, 2009)
Employee/Employer Implicated: Employees of the Corcoran Group, Real Estate Brokers, and a Director of IT
e-Lesson Learned: The importance of understanding, establishing, and complying with document preservation holds for the purposes of litigation is greater than ever before.
In Einstein, plaintiffs claimed that a Brooklyn condominium unit that they purchased was defective in its design and construction, and that defendants, including a real estate broker and several of its agents, fraudulently concealed water leak defects and induced plaintiffs to purchase the apartment. The plaintiffs obtained emails from co-defendants that were transmitted by the business defendant’s employees but never produced by the defendants during discovery.
The defendants failed to take reasonable measures to ensure that all business communications were preserved as per the legal hold notice instructions, which ultimately lead to spoliation of the documents and sanctions for acting grossly negligent. Through various motions and testimony of one the defendant’s IT director, it became clear that defendants relied on backup tapes in order to retrieve documents which were at issue, the reliance on which was flawed from the start. Continue reading »
Citation: William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)
Employee/Employer Implicated: Counsel, Third Parties, Document Custodians
e-Lesson Learned: When it comes to conducting searches of email and electronically stored information, New York District Courts expect counsel to cooperate and, with the input of document custodians, carefully develop keywords, which should then be quality control tested to assure accuracy and eliminate false positives.
Although most professionals and courts are still behind in the times when it comes to electronically stored information (ESI) and its discovery, the Southern District of New York recently sent a clear warning: Get with it! This district court cautions that counsel must cooperate with each other and get input from document custodians, to carefully develop and test keywords used to search email and other ESI.
In this March 2009 case stemming from a multi-million dollar construction dispute, the project owner agreed to produce all project-related emails and ESI from its non-party construction manager. The issue before the Court concerned the production of the construction manager’s emails from its server, and how to separate unrelated emails from project-related emails.
e-Lesson Learned: Key word searching is not enough to find all relevant information from a source of electronic discovery. Members of the TREC research team are testing several different search models and have identified a few best practices for lawyers working with electronic discovery.
Unfortunately, the key word search is ineffective for e-discovery. A keyword search often misses many of the relevant documents. However, the keyword search is the current standard for searches.
Does anything work short of hiring an expert?
Jason Baron and Doug Oard of the 2009 TREC Legal Track research team are addressing the many questions plaguing the field of E-discovery by testing the current E-discovery technology and various search methods.
With the help of lawyers, researchers, and scientists, the TREC researchers are seeking the perfect search for mining relevant e-discovery documents.
The shocking news – the technology tested from over 20 e-discovery vendors proved no better than Boolean keyword searches. Continue reading »
Fernando M. Pinguelo, founder of e-Lessons Learned,partner of the law firm Norris McLaughlin & Marcus, P.A., and Co-Chair of its Response to Electronic Discovery and Information (REDI) Group, and Robert Kleeger, Managing Director of The Intelligence Group, conducted a webcast titled: eData & Information Security: Friend or Foe?, on August 19, 2009, at 2:00 PM EST. The webcast was presented by the Association of Corporate Counsel (ACC) and sponsored by Meritas. Julienne W. Bramesco, General Counsel for Colonial Parking, moderated the one-hour webcast.
“Data and information security is simply the ongoing process of ensuring that data and information systems are kept safe from unauthorized access, use, disclosure, destruction, modification, disruption or distribution. Now, more then ever, we live in a world were an enormous amount of information is created, exchanged, and stored electronically. With this proliferation comes the daunting task and legal obligation to keep the data and information safe, secure, and accessible,” explained Pinguelo. Continue reading »
Employee/Employer Implicated: Resigned employee of Mintel and Mintel forensic expert
e-Lesson Learned: If at first you don’t succeed, don't "try, try again." Motions for reconsideration based on newly discovered evidence will only be granted when that new evidence is something you couldn’t have found before. “Tactical” withholdings and challengeable expert testimony will not fly here.
While filing six different motions to mirror image a third party’s computer may make the senior partners at your firm really happy that you are bringing in the big bucks, unless you have discovered something that there was absolutely no way of knowing about previously, you should probably cut your losses and move on. The plaintiff in this case alleged that prior to Meesham Neergheen leaving Mintel; he emailed himself Mintel documents via his personal email account and was using these documents at his current employer Datamonitor.
e-Lesson Learned: Counsel has an obligation to know what discoverable information his client has, to instruct his client to preserve relevant information, and to take reasonable steps to ensure that the instruction is being followed. The client has an obligation to take that instruction to heart.
Zubulake’s suit against UBS was your typical, run on the mill, employment discrimination case.However, along the way it has now become one of the seminal e-discovery cases.
Zubulake V is concerned with the plaintiff’s request for electronically stored information (“ESI”), in particular, e-mails.This motion was made after two years of attempting to get the information that she requested.The court was faced with the issue of whether to issue sanctions on UBS for its failure and delay in producing relevant evidence and if so whether UBS acted negligently, recklessly, or willfully.
The UBS’s lawyers did make some efforts to preserve evidence.They told employees to not delete relevant information.They instructed IT personnel to preserve back up tapes.And they met with key individuals and explained that the need to preserve all relevant evidence.However, it eventually came to light that these efforts were not enough. Continue reading »
Employee/Employer Implicated: Manager of Global Messaging
e-Lesson Learned: E-discovery issues often are interrelated to other areas of law. Thus, it is important to keep in mind the interplay between e-discovery and other legal theories when seeking to compel disclosure of electronic information.
Often times, the posts on this blog talk about a specific lesson to be learned related specifically to e-discovery rules, practice, and procedure.It can be easy to forget that in many cases, the e-discovery part of the litigation is not the end all and be all of the case, but it rather is interrelated with other substantive areas of law.This was especially true in the Zubulake v. UBS Warburg LLC opinion cited above, one of the many in the seminal Zubulake case.
In this 2003 Zubulake v. UBS Warburg LLC opinion, the plaintiff, Laura Zubulake, moved for an order permitting her to release the transcript of Christopher Behny’s deposition to securities regulators.Behny was the Manager of Global Messaging for UBS.The Southern District of New York had previously ordered UBS to produce an individual knowledgeable about UBS’s email retention and retrieval policies.After UBS produced Behny for a deposition, Behny testified on the structure of UBS’s backup system, its backup tape destruction/retention policy, and the feasibility and estimated cost of restoring the data that Zubulake requested. Continue reading »
Employee/Employer Implicated: Laura Zubulake, a terminated employee of Defendant UBS Warburg LLC; Owners/Executives and IT Departments
e-Lesson Learned: This case is a wake-up call for organizations and individuals: If your electronic records are in a mess, you better clean the mess up because courts are no longer handing out free “undue burden” passes, which previously excused defendants from having to produce documents at large costs.
For those of you that have been living under an e-discovery rock, and therefore have never heard of Zubulake, please continue reading.
The Zubulake decisions in 2003 through 2004 shook the world of e-discovery.Litigators, law professors, and all kinds of pundits, tuned in and took notice: U.S. District Judge Shira Scheindlin, one of the most brilliant trial judges on the bench today, and unfortunately for UBS, an e-discovery expert threw the gavel at UBS on this one.Zubulake walked away from this case with close to $30 million and UBS was left with a deep hole and lots of sanctions.
But we are skipping ahead in our saga.The case started as a common gender discrimination suit brought by Zubulake against her former employer, UBS. Continue reading »
Citation: Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008)
Employee/Employer Implicated: Owner/Executive
e-Lesson Learned: Make all reasonable efforts to preserve relevant data for pending or reasonably anticipated litigation, and if you can’t, be prepared to explain why. This includes having a data management protocol in place for managing the routine maintenance and deletion of data, stopping automated maintenance mechanisms and hiring experts to handle the preservation of relevant data at first notice of potential litigation, and performing a thorough search of discoverable data on the first attempt.
e-Lessons Learned is proud to bring you our first Video e-Lesson Learned, presented by Brett Van Benthysen of Seton Hall University School of Law. Click on the embedded video below to begin playback, and check out the e-Lessons Learned article it was based on by clicking here.
e-Lessons Learned is fast becoming the site of choice for employers, employees, judges, lawyers, and journalists who are interested in learning more about these areas without being intimidated by the complexity of the topic.In fact, organizations and event coordinators often feature e-Lessons Learned as their official e-discovery blog.To register e-Lessons Learned as the official blog of your organization or event, click here.
“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.”
-- Robert Ambrogi, Legal Tech Blogger and creator of LawSites
"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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Tagged as: Legal Hold/Preservation, Sanctions, Spoliation
