Authored By: Catherine Kiernan

Citation: Gatto v. United Airlines, 10-cv-1090 (D.N.J. 2013)

Employee/Employer Implicated: Document custodians, defendants, plaintiffs, counsel

e-Lesson Learned: Once a party knows that a social networking account, like Facebook, is relevant to the litigation, it must be preserved. Even accidentally deleting the account by leaving it deactivated for too long can be interpreted by the court as the intentional destruction of evidence leading to an adverse inference for the jury.

Tweet This: When deactivating your Facebook account becomes the intentional destruction of evidence

Deactivating your Facebook account and passively allowing it to be permanently deleted can be considered the intentional destruction of evidence.  The Plaintiff in Gatto is now facing a potentially damaging adverse jury instruction if he takes his case to trial.  In Gatto, a ground operations supervisor at JFK Airport was injured in his course of employment when one of the United Airline’s planes bumped into a set of fueler stairs, causing them to run into the plaintiff.  In his suit, Plaintiff alleges that due to the crash he has suffered various serious injuries, is permanently disabled, hasn’t been able to work since July of 2008, and his physical and social activities have been limited.  Defendants sought access to Plantiff’s Facebook account in relation to these claims.

Authored By: Stephen Bauer

Citation: Indep. Mktg. Group, Inc. v. Keen, 2012 WL 207032 (M.D. Fla. Jan. 24, 2012)

Employee/Employer Implicated: Counsel

e-Lesson Learned: Failing to produce adequate ESI can help a client’s case, but hurt a lawyer’s credibility and wallet.

Tweet This: ESI production requests still allow lawyers to play the game, but play too rough and you will get burned

Lawyers love playing “the game”: the passive-aggressive chess match of paperwork requests and time-stall battles with the opposing attorney. At first glance, botched production can look like sloppy lawyering, but in reality it can be a brilliant move in disguise. In this case, Independent Marketing Group is suing for breach of fiduciary duties, breach of contract, and other claims that imply an ugly end to the defendants’ employment. The defendants, pursuant to discovery in the suit, request information from Independent, but in doing so, find themselves on the verge of checkmate.

Authored By: Catherine Kiernan

Employee/Employer Implicated: Executives, In-House counsel, document custodians, all levels of employees

e-Lesson Learned: Electronic communications between employees that make a mockery of company policies and practices exposed through even the preliminary phases of e-discovery can quickly erode the legitimacy of a company and expose it to serious litigation.

Tweet This: Intra-Office E-mails: What used to be unreported office gossip now potentially exposes companies to liability

Serious problems can arise when what used to be office gossip around the water cooler instead manifests in discoverable intra office e-mails.

Authored By: Tracy Azinge

Citation: Hameroff & Sons, LLC v. Plank, LLC, 36 Misc. 3d 1229(A) (N.Y. Sup. Ct. 2012)

Employee/Employer Implicated: Contract Administrator

e-Lesson Learned: Willful and contumacious destruction of relevant documents concerning reasonably anticipated litigation could cost the offending party preclusion of evidence or documentation necessary to support claims or defenses.

Tweet This: Don’t get your evidence excluded – Do not willfully destroy documentation when litigation is reasonably anticipated!

Take caution not to destroy documentation when litigation is on the horizon!  When litigation is reasonably anticipated, the parties have an affirmative obligation to ensure that documentation is not negligently or willfully destroyed.  Failing to retain relevant documentation can lead to the preclusion of evidence necessary to make your case, as it did in Hameroff & Son, LLC.v. Plank, LLC.

Authored By: Alex Weininger

Citation: In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335 (N.D. Ga. 2012)

Employee/Employer Implicated: In-house counsel, Assistant General Counsel, Outside Counsel, Internal Technology Department

e-Lesson Learned: Failing to conduct a reasonable inquiry into the completeness of discovery can subject you to sanctions and costs.

Tweet This: Sanctions and soaring litigation expenses are the true cost of Delta and AirTran’s $15 checked-baggage fee.

A lawsuit over  a policy charging plane passengers for their checked luggage has put lawyers across the country on notice as to what constitutes a “reasonably inquiry” when it comes to complying with discovery obligations.  And the lesson cost Delta and AirTran a lot more than a $15 checked-luggage fee.

Authored By: Amanda Miceli

Citation: Siani v. State Univ. of New York at Farmingdale, 2010 WL 3170664 (E.D.N.Y. Aug. 10, 2010)

Employee/Employer Implicated: State University IT Department; Employees

e-Lesson Learned: When in doubt don’t delete! However, court will deny an adverse inference sanction, despite finding that defendants negligently deleted emails after the duty to preserve arose, where plaintiff could not demonstrate that the allegedly deleted emails were relevant.

Tweet This: Is it safe to delete your Groupon e-mails?

Often, when entering one’s e-mail account, a person will encounter a plethora of advertisements, chain e-mails, spam, and other irrelevant junk mail. Pursuant to their daily habit, one sifts through their mailbox in an effort to delete any hourly Groupon deals or invitations to join new dating websites, in order to find the e-mails important to their career, education, etc. However, when does a routine deletion of spam constitute a legal violation? For the average lay worker, without clear advice of legal counsel, it is difficult to discern which deletions will come back to bite you in the end during litigation.  In a 2010 case, a discrimination lawsuit exposed how a seemingly harmless deletion to clean an inbox could have resulted in a legal sanction.

Authored By: Catherine Kiernan

Citation: Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012)

Employee/Employer Implicated: Company executives, in-house counsel, independent agents, document custodians

e-Lesson Learned: The definition of “possession, custody, or control” under FRCP 34(a) will be construed broadly and a party is not required to have physical possession of the documents to be in control of them. Therefore, companies that use independent agencies should be conscious of the requirements and provisions they place in agency contracts because they can be inferred to give rise to discovery obligations.

Tweet This: Court's broad definition of "control" requires that litigation hold include independent agents

For discovery purposes, “control” over documents does not necessarily require actual physical possession.  In fact, certain agency contracts can designate that a company has “control” over documents held by its independent agents.  In Haskins v. First American Title Insurance Company, the United States District Court for the District of New Jersey held that First American Title Insurance (defendant) had to assert a litigation hold on its present and former independent title agents.

Authored By: S.A.A.

Citation: Patel v. Havanna Bar, Restaurant, and Catering, 2011 WL 6029983 (E.D.Pa. Dec. 5, 2011)

Employee/Employer Implicated: Counsel, Client, Judge

e-Lesson Learned: The Court has broad discretion in determining the type of sanction that is appropriate in cases of spoliation, including the possibility of an adverse inference that non-production of evidence was due to a fear of harm that the evidence could cause, thus counsel should be especially cautious in preserving materials necessary for litigation.

Tweet This: Failure to Preserve Footage and Non-Disclosure of Facebook Information May Lead to Adverse Inferences for Both Parties

The District Court judge ruled that an adverse inference was warranted for allegations of discovery abuse pertaining to messages sent on Facebook.  In Patel v. Havana Bar, Judge Goldberg ordered both Plaintiff Patel and Defendant Havana Bar to incur sanctions for spoliation for the former’s failure to produce statements given in response to a Facebook message about the Plaintiff’s case and for the latter’s failure to preserve video footage of the incident in question.

Authored By: Chris Borchert

Tweet This: Delaware Court of Chancery Issues Updated eDiscovery Guidelines

The Delaware Court of Chancery is amending its Rules 26, 30, 34, and 45 in order to update provisions relating to the retention and discovery of electronically stored information. The Court is also expanding its "Guidelines for Practitioners" to include "Discovery Guidelines," which set out the Court's expectations with regard to eDiscovery best practices.

Authored By: Michael Chew

Employee/Employer Implicated: Counsel for Megaupload

e-Lesson Learned: This case poses a novel legal issue resulting from a conflict in DMCA provisions and Megaupload’s litigation hold obligation.

Tweet This: Megaupload’s Legal Quandary

Almost a year after prolific founder of Megaupload, Kim Dotcom, was arrested and the site’s domain seized, recently disclosed court documents have illuminated the underlying legal complexity of the copyright infringement case.