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: Courtney O’Brien

Citation: Moreno v. Ostly, 2011 WL 598931 (Cal. Ct. App. Feb. 22, 2011)

Employee/Employer Implicated: Counsel, Client

e-Lesson Learned: Failing to disclose to the Court, and opposing counsel, that your client no longer possesses the cell phone from the relevant time frame, opposing the discovery request as too broad when you know the phone no longer exists, and then providing the new phone for inspection as if it was the old phone, will likely result in sanctions for misrepresentations to the court, and for wasting time and money.

Tweet This: Tell the Court that a Client doesn’t have the old cell phone – don’t try to pull a fast one and produce the new phone

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. 

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: Chrissy Caputo

Citation: In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va. 2008).

Employee/Employer Implicated: Outside Counsel, Information Technology Provider

e-Lesson Learned: Failing to properly limit a subpoena to relevant, non-privileged e-mails that fit within an exception to the U.S. Privacy Act will be quashed.

Tweet This: You’ve got mail…and AOL won’t give it to others without a fight

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.

Authored By: e-Discoverygirl

Citation: Viramontes v. United States Bancorp, 2011 U.S. Dist. LEXIS 7850 (N.D. Ill. Jan. 27, 2011)

Employee/Employer Implicated: Bank Manager, Entire Company

e-Lesson Learned: Unless litigation was imminent or reasonably foreseeable, a company does not have a duty to preserve electronically stored information.

Tweet This: Are you about to press the delete button? STOP and THINK - is it likely someone will sue me?

  Am I allowed to delete this? Do I have to preserve this email? When a former employee sues you for employment discrimination and requests documents that you irretrievably destroyed, are you going to be sanctioned? Unless litigation was imminent or reasonably foreseeable you are off the hook. Luckily the defendant in Viramontes v. U.S. Bancorp had no obligation to preserve.    

Authored By: Stephen Bauer

Citation: Mackelprang v. Fid. Nat'l Title Agency of Nev., Inc., U.S. Dist. LEXIS 2379 (D. Nev. Jan. 9, 2007)

Employee/Employer Implicated: Mid-Level Employee, CEO, In-House Counsel

e-Lesson Learned: Technology may be paperless, but it always leaves a paper trail. Use records to help yourself and act knowing that records are being saved against you.

Tweet This: Allow technology to take the “he said, she said” out of sexual harassment. Don’t think your personal settings are impenetrable.

A higher-up sexually harasses a mid-level employee. This sounds like every company’s bi-annual Human Resources lecture, but I’ll spare the burnt coffee and “trust falls” because the details in this account provides a lesson for both employees and their employers, preventing a disastrous situation.

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.

Tweet This: EXCLUSIVE: eLessons Learned’s Exclusive Interview with the Honorable Ronald J. Hedges

Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Thank you, Judge Hedges, for taking the time to provide eLLblog’s readers with some of your valuable insights about electronic discovery.

Authored By: Suzanne Janusz

Citation: Arteria Property Pty Ltd. v. Universal Funding V.T.O., Inc., No. 05-4896 (PGS), 2008 WL 4513696, (D.N.J. Oct. 1, 2008).

Employee/Employer Implicated: Owner/Executive, Outside Counsel

e-Lesson Learned: Website content can be discoverable like other types of electronic files. A court may order an adverse inference instruction when a party fails to produce and denies the existence of documents that it once disclosed to have possessed.

Tweet This: Past Website Content Is Discoverable and Failure to Produce Can Lead to Sanctions

Anything you post on your website can be used against you in later litigation.  Deleting content is not a solution.  Like other electronic files, snapshots or copies of a website as it existed on a certain date are discoverable in litigation.  And for all types of documents, trying to cover tracks by denying their existence after previously disclosing possession of them gives a judge good reason for ordering spoliation sanctions like an adverse inference instruction.