e-Lessons Learned

It happens all the time.  To expedite the litigation process, parties reach agreements as to the scope and timing of electronic discovery.  After all, who wants to delay litigation with the lengthy and expensive review of a universe of documents when you can significantly shrink that universe without compromising the quality of your production by agreeing on a set of specific custodians?

The parties in Wixon v. Wyndham Resort Development Corp. reached an agreement that by a specific date, Wyndham would produce electronically stored information (“ESI”) held by specific custodians that matched specific search terms.  But what happened when, after the deadline, Wyndham revealed a stash of ESI found in a shared directory of a hard drive not allocated to a specific custodian?  Does a document not directly linked to a specific custodian automatically become “nonresponsive”? Continue reading »

Can a defendant be subject to discovery sanctions for conduct occurring before discovery even begins?  Although this may seem antithetical, correctional officers at a federal prison in New Jersey were sanctioned for spoliating evidence when they were unable to produce videotape footage of an incident involving a prisoner during discovery of the Section 1983 action arising out of the incident.

In Kounellis v. Sherrer, 529 F.Supp. 2d 503 (D.N.J. 2008), plaintiff prisoner brought a Section 1983 action against correctional officers and prison officials after the officers allegedly assaulted the prisoner in retaliation for his filing of administrative complaints against the officers.  After the alleged assault, the prisoner repeatedly requested a copy of the video surveillance footage from a camera in the area of the alleged assault.  Defendants never provided the prisoner with the copy.   Continue reading »

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.

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So what is all the fuss about Stengart v. Loving Care Agency, Inc. et al.?  Why are eDiscovelebrities and employment lawyers alike watching the case so closely?  Why should YOU be watching? Privacy! (And eDiscovery, of course)

“It” (Stengart, the fuss, the Supreme Court of New Jersey, this post, all this blog attention) all boils down to whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems.

According to the trial court, Stengart did not have a reasonable expectation of privacy and the emails were properly retrieved and used by the employer and its lawyers in defense of the lawsuit.  According to the appeals court, not only did she (have a reasonable expectation of privacy), but also the appeals court took issue with the way the company lawyers handled the situation and queried whether the lawyers acted inappropriately when they retrieved and used these emails – and whether they should be sanctioned and/or thrown off the case.  Ouch!

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This case is a civil rights action brought by more than thirty Latino plaintiffs who allege that the Immigration and Customs Enforcement Division of the United States Department of Homeland Security and certain of its employees subjected them to unlawful, unwarranted searches of their homes in violation of the Fourth Amendment.  The plaintiffs in this case had been ordered to leave the country, however, they remained in the US as fugitive aliens.  This opinion arose because counsel failed to discuss the form of production for electronic documents early in the case, and the Court was forced to resolve several issues concerning the discoverability of metadata.

During a Rule 26(f) discovery conference, the parties agreed that discovery would proceed and that the parties would serve their first requests for the production of documents by February 15, 2008.  There was no discussion of metadata at this conference.  On February 15, the Plaintiffs served their first request for the production of documents, but their request did not specify the form in which they sought to have electronically stored information (”ESI”) produced.  This request did not mention metadata either.

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Earlier we reported that a New Jersey state trial court found that a former employee waived the attorney-client privilege when she decided to use company time, equipment, and resources to communicate with her lawyer (see Stengart v. Loving Care). Recently, an appellate court reversed that ruling and framed the issue “whether workplace regulations converted an employee’s emails with her attorney” sent through the employee’s personal, password-protected, web-based email account, but via her employer’s computer “into the employer’s property.”

Plaintiff had argued that the company failed to demonstrate that it had ever adopted or distributed the policy in question, that she was unaware that the policy applied to her, and even if the policy did exist, the company had not previously enforced it. The company argued that it had disseminated the policy, and that the policy did apply to the plaintiff. The appellate court determined that issues of material fact existed as to whether the policy at issue was in place and disseminated at the time of plaintiff’s employment and as to whether the policy applied to plaintiff; and that these issues could not be resolved by the trial judge without a hearing on the matter.

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Defendant Maxxam was accused of willfully destroying evidence that the government claimed would have aided its case.  The government alleged that Maxxam, a lumber company, fraudulently prepared a report that overstated the minimum amount of trees it could safely cut down while remaining economically viable.  The government further alleged that VESTRA, a consultant retained by Maxxam’s law firm, willful destroyed key data used in this report.

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We’re all familiar with the saying “Don’t judge a book by its cover.”  Perhaps you’ve fallen victim to this wise cliche yourself as you wander through a Barnes & Noble and a fantastic drawing on some random novel sparks your attention, ultimately luring you to the register.  At home, you eagerly crack open the book and realize it’s not as fascinating as the cover had led you to believe.  Doing some research on the book would’ve saved you some money, right?

As you’ll see, the Plaintiff in Lake v. City of Phoenix does everything right.  After receiving a hard-copy of a document and smelling something fishy, he requests metadata of the electronic version to substantiate the document’s authenticity.  Lake is told that he can’t get the metadata.

Dead-end?  Nope.  If there’s a will there’s a way.  By requesting the emails passed between his superiors and police reports, Lake is able to access information that may explain better the shadiness (or lack thereof) behind his demotion at work.

Procedural History

After filing an Equal Employment Opportunity Complaint against “the City” (Not to be confused with the MTV show), Phoenix Police Officer David Lake submitted various requests for public records to the City.  The City failed to produce several records related to his request and delayed the production of other records.  So what does one do?  Sue. Duh!

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Given our recent treatment of Zubulake as the “ebook of Genesis” on the creation of ediscovery, it is important to note that sanctions for ediscovery mishaps existed even before the term was coined.

This case arose out of a class action lawsuit brought by Prudential policy holders alleging that Prudential engaged in a scheme to sell life insurance through deceptive practices. On September 15, 1995, the court entered its first Order requiring that all parties preserve all documents and other records containing information potentially relevant to the litigation. This opinion relates to the multiple instances of document destruction by Prudential employees and agents after the issuance of this Order.

In 1994, pursuant to a regulatory directive issued to most life insurance companies, Prudential undertook a sweep of its sales materials to remove any unauthorized materials. To accomplish this, the company issued a manual that outlined the procedures to be followed in order to identify and remove all unauthorized sales materials. The materials specifically called for the destruction of all materials no longer authorized by Prudential. Continue reading »

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 »