The lesson here is twofold:  If you are going to depose witnesses regarding ESI, you must put the other party on notice of the scope of the deposition testimony being sought, or risk losing the opportunity to conduct further depositions.  But regardless of whether you are the party who asks or the party who answers, you must be sure to make every reasonable effort to resolve discovery disputes.

Plaintiff filed a 42 U.S.C.A. § 1981 claim, alleging that a stop by a store detective employed by Borders on December 2, 2005 was motivated by racial discrimination.  In response, defendant contends that plaintiff was questioned because the store detective saw him “place an item from the shelf of the store into a bag he brought into the store.”

Plaintiff served defendant with a notice to take a deposition pursuant to Rule 30(b)(6), which requires (1) that the organization being served designate a witness who can speak knowingly regarding the topic, and (2) that the party serving the organization define as clearly as possible the topics that will be covered in the deposition.

Plaintiff’s notice failed to mention the store’s email policies or any ESI in general; and instead stated only that the deposition would include discussion of defendant’s general document retention policies.  Defendant’s designated witness was unable to clearly articulate defendant’s document retention policies regarding email, and plaintiff therefore moved to have defendant designate another 30(b)(6) witness.

The Court first found that a reasonable lawyer reading plaintiff’s deposition notice would not be able to conclude that defendant’s email retention policies were going to be topics of discussion.  Further, the Court found that given the vast amount of business transactions conducted electronically, plaintiff should have specified that the email retention policy would be a subject of the deposition.  Lastly, the Court noted that there was no evidence that defendant had engaged in any behavior to suggest it knowingly destroyed any pertinent emails or that it failed to search conscientiously for relevant emails.

Despite the Court’s findings, the Court ultimately found that defendant’s document retention policies were relevant to the dispute and that the parties failed to try hard enough to resolve the issue.  Pointedly noting that “the potential legal fees in this case, thanks to the many discovery disputes, will dwarf the potential recovery,” the Court exercised its discretion to end the dispute by ordering defendant to answer a series of questions posed by the Court regarding email retention policies.

While plaintiff benefited from the Court’s order, he was ultimately denied the opportunity to depose a second witness using his own questions.

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”?

The plaintiffs and defendant Wyndham had reached a written agreement that Wyndham would produce ESI limited to “specific search terms and custodians” and that it would “complete [its] production by no later than February 16, 2009.”  The agreement defined the scope of the ESI as that based on documents responsive to a specific set of search terms and “limited to the list of 26 [Wyndham] custodians.”  The agreement also included a built-in punishment should a party fail to complete discovery within the agreed upon period:  Hard copy and ESI documents not produced by the deadline could not be used by either party in support of or to defend the plaintiffs’ imminent motion for class certification.

Wyndham sent the plaintiffs its initial production by the February 16 deadline, but it also produced an additional 30,000 ESI documents more than two months after the agreed upon deadline had passed.  And when Wyndham announced that it intended to allow its expert witness to use some of those additional documents in its fight against class certification, the plaintiffs filed a motion to strike.

Wyndham seemed to acknowledge that the agreement required it to produce all “responsive” documents by the February 16 deadline.  But it argued that the exclusion clause of the agreement—the prohibition on using the document to defend plaintiffs class certification motion—only applied to “responsive” documents not produced by the deadline, and that “nonresponsive” documents produced after the deadline were fair game.  Wyndham then argued that documents it produced late were nonresponsive because they did not come from one of the named custodians.  It explained that the documents were located on a shared file directory that was not linked to a particular custodian.  A Special Master assigned by the court agreed with Wyndham’s argument, concluding that because the untimely ESI did not come from a named custodian, it was not “responsive” according to the agreement between the parties, and thus was not untimely.

The district court for the Northern District of California rejected the Special Master’s recommendation and reasoning.  In addressing Wyndham’s excuse that it was unaware of the existence of the shared directory as its reason for failing to timely produce the ESI, the court quickly imputed knowledge of the shared directory to Wyndham.  Referring to named custodian Scott Grey, the court explained that “Mr. Grey, and therefore Wyndham, knew about this directory.”   The court accused Wyndham’s proposed custodian-based ESI search of containing “a major flaw, namely a directory full of potentially relevant documents with no custodian.”  The court refused to allow Wyndham to use the logic that a document not specifically linked to a named custodian is nonresponsive, and concluded that it was “[not] reasonable for Wyndham to ignore the problem and rely on an overly narrow and hyper-technical reading” of the agreement.  Finding Wyndham’s decision to not timely produce documents from the shared directory unjustified, the court ordered Wyndham to pick up the tab for both the plaintiffs’ motion to strike costs and the Special Master’s fees.

Wyndham could have avoided this ruling by carefully mapping out its custodian-based production and determining early on where key players in the dispute might have squirreled away documents.  Counsel, in directing the collection of ESI, should not overlook locations such as personal and shared folders on scanners, servers, and removable drives.

In High Voltage, the plaintiff filed a motion to compel the defendant to search for alternative sources beyond the initial production of documents for the selection of the VAULT mark.  This would involve having the defendant review an additional 1.5 million pages of documents (17 gigabytes) beyond the 1.7 million pages already produced to the plaintiff.

Predictably, the defendant was unwilling to shoulder the burden of reviewing the additional documents, as defendant reasonably believed it would not provide any new discovery that had not already been provided to the plaintiff.  However, the defendant was more than willing to allow the plaintiff to review the additional source of information by allowing the plaintiff to search through the additional sources for documents relating to the selection of the VAULT mark.

The court, citing Rule 26 of the Federal Rules of Civil Procedure, denied plaintiff’s request to compel the additional documents, finding that under Rule 26, plaintiff’s additional request was unreasonably duplicative and the additional material requested likely had already been produced to the plaintiff.  The court also found that the defendant made an unrebutted showing that the burden or expense of plaintiff’s proposed discovery outweighed its likely benefit.

Thus, if the defendant can show the court that it acted in good faith and complied with reasonable discovery requests, a motion to compel additional documents would be denied unless the benefits of additional discovery will outweigh the burden/expense.  Even though the court held against the plaintiffs, it still required the defendant to once again offer the plaintiff an opportunity to search through those additional documents at defendant’s place of business.  Plaintiffs would not be allowed unreasonably burden the defendant with additional document requests simply by making numerous requests for documents that may have already been provided.  If the Plaintiffs were to insist on the additional documents, they would have to do the work themselves and bare the costs.

In Stengart v. Loving Care Agency, Inc., the Court held that an employee could “reasonably expect that e-mail communications with her attorney through her personal account would remain private, and that sending and receiving them via a company laptop did not eliminate the attorney-client privilege that protected them.”  The Court also held that the company’s attorneys violated an ethics rule by reading the “arguably privileged” e-mails and by failing to alert the employee that they had them.  But the Court did unleash at least one surprise by announcing that even a seemingly bulletproof company policy on workplace computer use that claims the employer could read an employee’s attorney-client communications would not be enforceable if the employee accessed the communication through a personal, password-protected e-mail account.

Ever quickly peek at your web-based personal e-mail account while still at the office?  Yeah, many of us do, too; and we’d be willing to bet a ham sandwich that certain Justices on the New Jersey Supreme Court probably do, as well.  Peeking at her personal e-mail account while still at work is how plaintiff Marina Stengart ended up in front of those same Justices last winter.  After deciding to sue her employer on various employment discrimination charges, Stengart used a company-issued laptop to communicate with her attorney via her personal, password-protected Yahoo e-mail website.  At the time, Stengart had no idea that the laptop was automatically saving copies of each page that she viewed, to a temporary internet file cache folder on the laptop’s hard drive.  After Stengart quit and turned in the laptop, Loving Care forensically imaged the hard drive and discovered images of the e-mails Stengart exchanged with her attorney.  Believing that Stengart had waived any privilege claims, Loving Care’s attorneys cited one of the e-mails in an interrogatory answer.  That belief was supported, initially, by the trial judge who found that Stengart waived the privilege; but the trial court decision was reversed on appeal to the Appellate Division.

On challenge to New Jersey’s highest court, Loving Care argued that the attorney-client privilege did not attach to the e-mails because its company policy regarding computer and internet use at the workplace removed any expectation of privacy that Stengart may have had; and that she waived the privilege because she accessed her e-mail via the company’s computer and server.  The Court disagreed.  After first deeming Loving Care’s Policy “not clear” and as creating “ambiguity about whether personal e-mail use is company or private property,” the Court evaluated case law from other jurisdictions, giving particular attention to (and ultimately following) a Massachusetts case with nearly identical facts.

The Court considered factors by which an employee could be found to have a lesser expectation of privacy in attorney communications.  First, the court distinguished between the use of a company e-mail system as compared to a personal, web-based e-mail account (such as Yahoo or Gmail.)  E-mails transmitted via an employer’s e-mail account might be subject to less privacy than those sent via a personal web-based account.  Second, the Court noted that the physical location of the company’s computer might make a difference in the analysis, suggesting that an employee who works from a home office may be entitled to greater privacy than an employee whose communication is made via the company’s servers.  Third, the Court recognized that other jurisdictions have held that the existence of a clear company policy that prohibits personal computer use may diminish an employee’s expectation of privacy; but, as explained below, the New Jersey Court refused to consider the sufficiency of a company policy as a determination of whether the employer can pierce the attorney-client privilege.

In holding that Stengart’s e-mails were protected by the attorney-client privilege because she could reasonably expect them to remain private, the Court cited three reasons.  First, the Court noted that Stengart had both a subjective and an objectively reasonable expectation of privacy in the e-mails – she had used a password-protected account to access the messages and had not given her password to anyone at Loving Care.  The Court also noted that Stengart had not used the computer to conduct illegal activities.  Third, the Court seemed impressed that the e-mails contained the boilerplate language warning the reader that the information was only intended for the designated recipient and contained privileged attorney-client communications.  But, as mentioned above, the effectiveness of Loving Care’s “Electronic Communications Policy” on workplace computer use was not dispositive.

The Court determined that the Policy was ambiguous, lacked clarity, and failed to warn employees that even web-based e-mails could be forensically retrieved.  But, as the Court stated, even if the Policy were perfectly drafted, it would not be enough to pierce the attorney-client privilege:

[E]mployers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy.  . . . [E]ven a more clearly written company manual—that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney client communications, if accessed on a personal, password protected e-mail account using the company’s computer system—would not be enforceable.

Declining to rely on other states’ case law holding that a clear company policy banning personal e-mails could diminish an employee’s expectation of privacy in attorney-client communications, the Court added that a “zero-tolerance policy can be unworkable and unwelcome in today’s dynamic and mobile workforce and [we] do not seek to encourage that approach in any way.”

What about Loving Care’s attorneys?  Should they have immediately returned the e-mails (which were plastered with the standard “CONFIDENTIAL . . . Attorney-Client communication” language)?  The Court thought so, and ruled that Loving Care’s attorneys violated professional ethics rules by “not setting aside the arguably privileged messages once it realized they were attorney-client communications, and failing either to notify its adversary or seek court permission before reading further.”  Noting the absence of an appearance of bad faith, the Court reiterated that the attorneys “should have promptly notified opposing counsel when it discovered the nature of the e-mails.”

To learn more about Stengart and its rise to the Supreme Court, visit our exclusive Stengart Watch feature which posts articles (and video) on each of the Stengart decisions and on related cases in other jurisdictions.

In Cason-Merenda v. Detroit Medical Center, defendant filed a Motion for Protective Order in an attempt to require the plaintiff to pay 50% of its third-party vendor electronic discovery costs.  The defendant relied on Fed.R.Civ.P. 26(b)(2)(B),  which states that “[o]n motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.”  After the producing party shows that the information is not reasonably accessible, a court then has the ability to apportion costs between the two parties.

Here, the court found that the defendant’s motion was untimely in two respects.  First, according to the Scheduling Order that was issued on April 23, 2007, “protective orders … must be filed within 14 days of receipt or notice of such disputed discovery.”  On April 4, 2008, plaintiff’s counsel informed defendant’s counsel that they would not share the costs of producing electronically stored information.  This triggered the 14-day timeline for a protective order.  However, defendant did not file the Motion for Protective Order until May 20, 2008, more than a month after the motion sould have been due.

In addition to not filing the motion on time, defendant also failed to comply with the underlying purpose of Fed.R.Civ.P. 26(b)(2)(B).  The Rule provides that a motion for protective relief (including cost shifting, which was at stake in this case) should be brought to the court in advance of the undue burden, cost, or expense from which protection is sought.  According to the court, “it offends common sense … to read the rule in a way that requires (or permits) the producing party to suffer ‘undue burden or cost’ before raising the issue with the court.”

In this case, defendant elected to suffer the cost of producing the electronically stored information before raising the issue of undue burden or cost.  The court opined that the Rule must be read as a means of avoiding cost, and that defendant failed to make timely resort of Fed.R.Civ.P. 26(b)(2)(B).   As a result, the court denied the defendant’s Motion for Protective Order.

Going forward, counsel should pay close attention to communications from opposing counsel regarding the sharing of discovery costs.  Such communications may trigger timelines that, if not met, will cost your client beaucoup $$$$$.  (Oh, by the way, you should read the court’s scheduling order while you’re at it)

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.

In planning the search, the project owner suggested keywords specific to the names of the parties and the project, which were likely to be under-inclusive.  The other parties requested  the use of generic construction project keywords such as “build” and “claim” that would have triggered production of a vast amount of unrelated emails and ESI.  The non-party construction manager, not wanting to be involved in the litigation, offered very little assistance in the development of the search terms.  The parties’ inability to establish a keyword search compromise compelled the court to develop the terms of the keyword search, with little information and guidance from the parties.

Chastising the parties and counsel for these recurring problems, the Court emphasized the need for counsel to cooperate with each other and get adequate information from email authors and document custodians in order to successfully develop a keyword search.  The Court underscored the importance of advanced planning by those qualified to develop the search methodology, along with the need for quality control to assure accuracy and completeness of the search.  The party who selects the method must be able to explain it to the Court, including reasons for using the particular method, why the method was appropriate, and how it was properly applied.

Outside Counsel must cooperate when it comes to e-discovery issues.  In formulating and conducting searches of emails and ESI, obtaining input from clients, email authors, and ESI custodians is key; and the use of quality control methods assures accuracy and completeness of the keywords and search.  Not only will these techniques make the eDiscovery process easier and more reliable, but also courts now expect counsel to employ such methods without having to be told to do so.

While electronically stored information (ESI) may be a rather esoteric concept for many of us (perhaps most), in the eyes of the law and the court, ESI is just as real as traditional paper documents; and one’s failure to search for and disclose ESI in a timely manner could lead to big problems for an attorney and the client.  In one case, it may have cost one company $25 million.

Only six-months ago, in B & G Management v. Lexington Insurance, the United States District Court for the Middle District of Florida, Orlando Division, granted a motion for Rule 37 Discovery Sanctions brought by defendant Lexington Insurance Co. (“Lexington”) against plaintiff B & G Management (“B&G”) that effectively defeated B&G’s claim for $25 million in damages.

In that case, B&G filed a complaint against Lexington, its insurer, for breaching the commercial property insurance policy it issued B&G.  B&G had filed a claim with Lexington for business interruption losses allegedly incurred as a result of damage to its Treasure Island Resort caused by Hurricane Jeanne.  B&G’s claimed the $25 million policy limit.

Throughout discovery, time and time again, B&G failed to satisfy its obligation to search for, locate, and disclose electronically stored documents containing information relevant to B&G’s business interruption losses in accordance with Lexington’s discovery demands.  B&G also ignored court orders establishing discovery disclosure timeframes and mandating B&G’s production of certain documents.

Even so, B&G twice managed to side-step Lexington attempts for court ordered sanctions.  B&G’s luck ran out on Lexington’s third attempt.  The court granted Lexington’s motion for sanctions and, reflecting the severity of B&G’s misconduct, barred B&G from using the very information that could have supported its claim for $25 million in damages.

Yet, were B&G’s failures the result of sloppy work or a calculated business decision to deprive its adversary of the very information most beneficial to its case?  In the end it does not matter whether it was the former or the latter – B&G’s discovery failures led to court ordered sanctions effectively defeating its claim.

Take for example Preferred Care Partners Holding v. Humana.  In that case, Humana produced an additional 10,000 documents two months after the completion of discovery, and suffered sanctions because of it.  Humana discovered the existence of these newly produced documents during a deposition of an employee who found residual copies of documents that he believed had been deleted from his computer.  As a consequence, Humana conducted a subsequent search which led to the discovery of a vast number of residual files on other computers.  Because of the need to sort through all of the documents to determine which ones were responsive and privileged, the files were not produced until well after discovery concluded, and only a short time before trial.

This failure to locate documents could have been avoided if counsel had simply instructed all employees to conduct a basic search of their computers for responsive documents.  Instead, outside counsel here assumed that employees deleted these documents as required by a confidentiality agreement between the two companies.  This incorrect assumption that the files no longer existed resulted in significant problems for counsel and his client. Unfortunately for outside counsel (and Humana), 10,000 documents were not deleted as per the agreement; and thus, the documents should have been uncovered and produced during discovery.  The lack of timely production arose from the (false) belief that all computers contained only one initial copy of the relevant files when in fact many of them contained residual copies.  These residual copies were discoverable and should have been discovered and turned over during discovery.

An important lesson to remember in this day and age is that rarely, if ever, does a computer actually delete (i.e., “gone forever”) a file.  Computer files automatically “back-up” during normal document creation.  If back-up or residual copies of documents that pertain to ongoing litigation exist, then a lawyer must do the necessary diligence to find them.

Humana’s outside counsel did not inquire and conduct the necessary searches to discover the residual documents during discovery.  Instead, counsel just assumed that the documents were destroyed in accordance with the preexisting confidentiality agreement.  Making assumptions can have dire consequences in life and the law.  Here, the court issued sanctions in two ways.  First, it permitted additional discovery to ensure Humana turned over all relevant documents and give Preferred Care Partners the necessary time to review them before trial.  Second, the court ordered Humana to pay all of Preferred Care Partners’ costs and attorney’s fees in relation to the additional discovery and defense of the motion required as a result of Humana’s “grossly negligent” discovery conduct.  The court agreed with Preferred Care Partners that Humana’s delay was either “an intentional effort to sandbag PCP on the eve of trial or at least was the result of Humana’s grossly negligent execution of its discovery obligations.”  Preferred Care Partners Holding v. Humana, 2009 WL 982460, ¶1 (S.D. Fla. April 9, 2009).

In order to avoid the type of sanctions that the court issued as a result of Humana’s conduct, outside counsel should be sure to conduct thorough eDiscovery.  Even when corporate counsel believes that computer files no longer exist, it’s better to inquire of the relevant IT professional to be certain that all relevant documents are accounted for. Attorneys are not technology experts, and it is always best to ask for help instead of making dangerous assumptions that can cost you and your client time and money.

“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!

This case is serious stuff, my friends, for lawyers, employees, and employers alike.  For those new to the case, here are some key elements of the Stengart line of cases for you to consider as the whole world (and blogosphere) awaits a ruling by the Supreme Court of New Jersey on the issues both the trial and appeals courts addressed and ruled upon.

The Facts (in a nutshell)

Loving Care Agency (the defendant in the case) is in the business of providing home care services for children and adults. The plaintiff, Maria Stengart, was its Director of Nursing for all of Loving Care’s branches as well as the Branch Manager at Loving Care’s Fort Lee office. Ms. Stengart was also one of the first two employees when Loving Care first opened for business in 1994.

Loving Care maintains an employee handbook which is distributed to all employees and which is also available to employees electronically via Loving Care’s servers. During Ms. Stengart’s tenure as Director of Nursing and Branch Manager for Loving Care, she assisted in the creation and distribution of the employee handbook. Among other things, the handbook governs an employee’s use of Loving Care’s computers and other technology resources. Under a section entitled “Electronic Communications,” the handbook provides, among other things:

• Technology resources are considered company assets.
• Email and voicemail messages, internet use and communication, and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.
• The principal purpose of email is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures.
• Certain uses of the email system are specifically prohibited, including but not limited to job searches or other employment activities outside the scope of company business.

During her employment at Loving Care, Ms. Stengart was provided with a company-issued laptop computer and assigned a Loving Care email account for business use. She also maintained a personal email account through Yahoo. Ms. Stengart occasionally accessed her password-protected Yahoo account to write emails during work hours on her company-issued laptop.

In December 2007, Ms. Stengart resigned from Loving Care. Two months later, she filed a lawsuit against Loving Care alleging that the hostile work environment had led to her constructive discharge. In April 2008, Loving Care’s attorneys in the employment lawsuit caused to have made an image of Ms. Stengart’s company laptop computer hard drive. The image preserved the electronic information contained on her employer-issued laptop. The hard drive was then sent to a company that could restore and recover deleted information located on the hard drive.

The Legal Path

eDiscovery: In October 2008, Loving Care served plaintiff its Answers to Ms. Stengart’s first set of interrogatories. In response to an interrogatory, Loving Care stated that it had obtained information contained in “email correspondence from Ms. Stengart’s office computer on December 12, 2007 at 2:25 p.m.” between plaintiff and her lawyer. This email was uncovered by the company hired to restore and recover deleted information located on the hard drive of plaintiff’s employer-issued laptop. The email in question was sent from Ms. Stengart’s password protected Yahoo account to her lawyer.

Loving Care’s answer to this interrogatory prompted Ms. Stengart to demand that all emails between her and her lawyer held by Loving Care be returned or destroyed. She claimed that the attorney-client privilege protected all such emails. Loving Care refused to return or destroy the emails, claiming that the content of the emails was not protected by the attorney-client privilege because Ms. Stengart waived the privilege by using Loving Care’s computer and server during business hours to make the communication. Ms. Stengart thereafter filed an Order to Show Cause alleging Loving Care’s attorneys breached her attorney-client privilege when Loving Care recovered and retained email correspondence made between her and her lawyer.

The trial court: The court determined that Loving Care’s policy (as detailed above) placed plaintiff on notice that all of her internet-based communications are not to be considered private or personal. In addition, Loving Care’s policy put employees on notice that the technology resources made available to employees were to be used for work-related purposes, particularly during business hours. The court found that the company’s policy adequately warns employees that there is no reasonable expectation of privacy (not outright prohibition of use) with respect to any communication made on company issued laptop computers and servers, regardless of whether the email was sent from Ms. Stengart’s work email account or her personal web-based email account. It was with Loving Care’s technology resources, laptop computer, and company time that Ms. Stengart communicated with her lawyer.

Thus, the court found that when Ms. Stengart decided to use company time, equipment, and resources to communicate with her lawyer, she did so with knowledge that such use would not be personal or private to her. Ms. Stengart’s choice of using her employer’s resources to communicate with her lawyer was her voluntary choice; and the court held that it constitutes a waiver of her attorney-client privilege.

The appeals court: The appeals court reversed the trial court and remanded the case.  The appeals court held that employees have a reasonable expectation of privacy in personal communications on a company owned computer. In sum, it held that a policy purporting to transform all private communications into company property “merely because the company owned the computer used to make private communications“ furthers no legitimate business purpose.

The appeals court concluded reversal of the trial court by addressing the issue of attorney discipline for the company’s law firm that uncovered and kept the emails. The appeals court determined that the law firm violated New Jersey Rule of Professional Conduct 4.4(b) because the lawyers failed to cease reading and examining the emails upon discovery and failed to notify plaintiff’s lawyer promptly of their discovery. The appeals court ultimately determined that whether the company’s attorneys should be disqualified is a matter for resolution upon remand to the trial court.

Where The Case Stands, Today

On July 29, 2009, the Supreme Court of New Jersey granted a motion for leave to appeal the appellate division ruling.  See 200 N.J. 204 (2009).  On December 2, 2009, the Court heard oral argument on the case.  You may view the oral argument webcast at:   http://njlegallib.rutgers.edu/supct/args/A_16_09.php (click on Video Feed )

A decision is expected any day.  Click here for immediate notification of the Supreme Court of New Jersey’s decision and other eDiscovery posts.

eLessons Learned has been following the Stengart case closely since its inception.  Read our past blog posts and coverage of this important case here.