Employees

Fishing for Relevancy

Make sure that when you request electronic discovery information, it is relevant to the case at hand. The mere fact that information from the request could lead to admissible evidence is not enough to make the request relevant. In Salvato v. Miley, the father of plaintiff and decedent, Joshua Salvato, brought suit on behalf of his son for wrongful death.  Salvato passed away due to a gunshot wound to his abdomen.  Salvato’s father alleged that two police officers used excessive force during the questionable incident and failed to administer adequate medical treatment. After the plaintiff’s first set of interrogatories, one of the defendant officers, Deputy Brown, objected to the discovery requests that asked for personal cell phone numbers, e-mail accounts, social media accounts, and any online memberships, including the corresponding usernames and passwords and any correspondence sent or received via those accounts. Brown objected to these interrogatory requests for four reasons:  1) the requests sought confidential information protected by Fla. Stat. § 119.071(4); 2) the requests sought irrelevant and immaterial information that is not reasonably calculated to lead to admissible information and constitutes a fishing expedition; 3) the requests were overly broad with respect to their time, scope, and effect while presenting Brown with annoyance, embarrassment, and oppression; and 4) the requests invaded Brown’s right to privacy under Article I, Section 23 of the Florida Constitution.  Salvato, 2013 WL 2712206 at *2. The court did not address the arguments involving the Florida statute or constitution.  Instead, the court focused on the relevancy of the plaintiff’s requests, finding that the plaintiff had “essentially sought permission to conduct ‘a fishing expedition’ . . . on the mere hope of finding relevant evidence.”  Salvato, 2013 WL 2712206 at *2 (quoting Tompkins v. Detriot Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012). The plaintiff’s only response was that the information “could include admissions against interest, and could certainly lead to the discovery of admissible evidence.”  The court did not agree, and instead found that the plaintiff must have the “threshold burden of showing that the requested discovery is relevant.”  Here, the information the plaintiff sought was too much of a “fishing expedition” to be deemed relevant.

Evidence of Destruction Deserving of Damages

In 2007, John Lemanski was employed as a purchasing Manager for Barrette Outdoor. His responsibilities included purchasing resin for the production of siding at the lowest possible cost.  Unfortunately, in 2011, the company began to downsize and Lemanski’s position was dissolved. After Lemanski’s termination, it was discovered that Lemanski was not purchasing resin at the lowest market price per his job description, but rather at almost full cost due to his interest in Michigan Resin Representatives (MRR).  Upon his termination, Barrette alleged Lemanski destroyed over 270,000 digital documents and severely hindered Barrette’s ability to prove their case.  While Lemanski had a duty to preserve these documents, his intentional disregard and willful destruction of evidence was enough to warrant sanctions. On his last day of employment, Lemanski was presented with a Separation and Release Agreement; however, when Barrette learned of Lemanski’s financial interest in MRR, the agreement was revoked.  Shortly after, Lemanski received an e-mail with an attached Notice to Preserve Electronically Stored Information. While Lemanksi claimed he did not read the e-mail until later, evidence suggests the contrary—including the fact that he installed and executed data wiping software on his company computer. A party seeking a sanction for the destruction of evidence must show:  1) “‘that the party having control over the evidence had an obligation to preserve it at the time it was destroyed;” 2) that the evidence was destroyed with a “‘culpable state of mind’”; and 3) “‘that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.’”  See Adkins v. Wolever (Adkins III ), 692 F.3d 499, 503-04 (6th Cir. 2012).  After examining Lemanski’s conduct, the court concluded that a sanction for spoliation was warranted based on two instances of conduct.  While the deletion of files from his work computer may not have been done in anticipation of litigation, Lemanski was soon thereafter served with a Notice to Preserve.  At that time, he disposed of his personal cell phone and made no effort to retrieve it the next day after receiving said the aforementioned Notice.  Secondly, Lemanski continued to disregard his duty when he erased 270,000 files from his personal laptop after Barratte sought a motion to compel Lemanski to produce this very same laptop for imaging. Lemanski was simply in too deep and attempted to cover his wrongdoing.  He should have abided by the Notice to Preserve and simply handed over the requisite files for production.  Due to his actions, the court held ordered Lemanski to pay Barrette $25,000.00 in compensation regarding fees and costs incurred by brining a spoliation motion, to pay Barrette $10,000.00 for Barrette's increased expenses in conducting discovery and proceeding with litigation absent evidence, and an adverse inference presented at trial that Lemanski’s cell phone and personal laptop contained information unfavorable to Lemanski and that Lemanski was involved with MMR.

New Jersey Passes Social Media Privacy Bill

Everyone enjoys their privacy, even legislators! Privacy bills are becoming ubiquitous in state legislatures across the country. With the increased use of social media in and around the workplace, states are legislating to protect the dueling interests of employers and employees. Ten states, including New Jersey, passed laws that restrict employers from accessing the social media accounts of employees.

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Filing a Personal Injury Claim? Get Ready to Produce Your Private Facebook Profile

The scope of relevant discovery for social networking sites (SNS) is like Goldilocks – it can’t be too broad or too narrow, it has to be just right for the courts to allow it. This is especially true when the case involves emotional and mental health claims.

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Psychic Readings Are Not Beyond the Court’s Reach

What Randi Glazer’s psychics didn’t foresee was the compelled production of their predications.  If they could, maybe they would have told her to keep them out of her employee inbox.

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WARNING: E-mails with Attorney Transmitted in Violation of Employer ”No Personal Use” Policy will NOT be Protected by Attorney-Client Privilege or Work Product Privilege

In an employment contract dispute, the plaintiff employee-doctor made a motion for a protective order regarding all e-mail correspondence between the employee and his attorney pursuant to the attorney-client privilege, CPLR 4503, and the work product doctrine, CPLR 3101(c). The defendant employer-medical center made a motion for a protective order as to discovery concerning a governmental or regulatory investigation. The court ultimately granted defendant’s motion, but denied plaintiff’s motion because it found that he waived attorney-client privilege as well as the work product privilege. Given the facts of the case, and specifically the employer’s “no personal use” policy, this result was not surprising.

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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.

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Honesty is the Best Policy, and Cell Phone Upgrades Are Not An Excuse

Don’t knowingly produce incorrect electronic devices for discovery! When opposing counsel requests production of your client’s cell phone from the relevant time period for inspection, it is your duty to provide accurate information regarding the whereabouts of the phone. 

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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.

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Just When You Thought AOL Was Irrelevant—It’s Good to Know those Emails from 1999 Won’t be Getting Out

Contrary to popular belief, AOL is still an internet service provider and has recently made itself relevant again.  During the Hurricane Katrina litigation in McIntosh v. State Farm Fire & Casualty Co., two non-party witnesses discovered what they believed to be fraud on behalf of State Farm.

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