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: Chrissy Caputo

Citation: Kenney, Becker LLP v. Kenney et. al, 34 A.D.3d 315 (N.Y. 1st Dept. 2006)

Employee/Employer Implicated: In-house Counsel, Kenney Becker employee, upper-level management

e-Lesson Learned: Communications via e-mail between attorneys and their client’s employees are not automatically protected.

Tweet This: Think twice before e-mailing what you don’t want disclosed.

The brief order by the First Department Appellate Division doesn’t delve into much background (or really any background at all) as to the facts of the present case, however, it does shed some light on discovery matters. The prior order had directed the plaintiff to turn over a certain e-mail as part of the discovery, and moved the deposition of the defendant to New York instead of Florida.

Authored By: e-Discoverygirl

Citation: AccessData Corp. v. Alste Tech, GMBH, No. 2:08cv569, 2010 WL 318477 (D. Utah, Jan. 21, 2010)

Employee/Employer Implicated: Counsel

e-Lesson Learned: The German Data Protection Act and Hague Convention procedures are not applicable in a breach of contract action because a U.S. Court can order a party in its jurisdiction to produce information and the costs transmitting this information are minimal.

Tweet This: A foreign company’s information is no longer foreign to the U.S.

Just because your adversary makes a request for documents that would violate German law, it doesn’t mean you are not required to do so. In AccessData Corp., the plaintiff made several discovery requests, including a request for a production of documents, which encompassed the production of third-party personal information. The defendant objected to the request for production on the grounds that they were overly broad, unduly burdensome, and seeking irrelevant information. Additionally, the defendant claimed that the “disclosure of information relating to third parties’ identities would violate German law.”

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: Courtney L. Shanney

Citation: Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012).

Employee/Employer Implicated: Users of social media

e-Lesson Learned: Discovery requests for one’s entire personal Facebook account is overly broad, as much of what is posted is irrelevant to lawsuits; therefore, portions of an individual’s Facebook account that are not viewable by the general public are protected from discovery. But anything on Facebook that is viewable by the public is discoverable and if that material is relevant to the lawsuit, the rest of the Facebook page may not be protected.

Tweet This: Private personal social media accounts may not be entirely discoverable because they are overbroad.

We often hear that we should be careful about what we post on the internet.  But no matter how many times we hear this good advice, it seems like we have all posted something on the internet that we later regret.  Unfortunately, the internet is not a forgiving place.  And these unwanted internet posts can haunt an individual and result in serious consequences.

Authored By: Amanda Munsie

Citation: U.S. Bank Nat. Ass’n v. GreenPoint Mortgage Funding, Inc., 94 A.D.3d 58 (N.Y. App. Div. Feb. 28, 2012)

Employee/Employer Implicated: Counsel (in house and outside)

e-Lesson Learned: The producing party bears the initial cost of searching for, retrieving and producing ESI.

Tweet This: According to at least one New York court, litigants must front the costs of finding and producing ESI and hope to recoup it later.

In February 2012, the New York State Supreme Court, Appellate Division, First Department, held that the cost of finding of producing electronically stored information (ESI) is placed initially on the party producing the discovery request.  While this decision is consistent with New York’s longstanding rule that discovery requests are to be paid by the responding party, discovery in the context of ESI brings an added complication.

Authored By: Thomas Moran

Citation: Barr Laboratories, Inc. v. Kos Pharmaceuticals, Inc., 362 F.Supp.2d 421 (S.D.N.Y. 2005).

Employee/Employer Implicated: Senior Management, Outside Counsel

e-Lesson Learned: A company may not be able to protect all trade secrets in a courtroom, at least in terms of a company seeking an injunction and temporary restraining order.

Tweet This: When are Trade Secrets not Trade Secrets? When you try to obtain an injunction and temporary restraining order.

When are trade secrets no longer allowed to be kept secret?  According to the Southern District of New York, when you try to obtain a preliminary injunction and temporary restraining order in federal court you also appear to waive your right to trade secrets.

Authored By: Corinne B. Maloney

Citation: Silverman v. Shaoul, 913 N.Y.S.2d 870 (Sup.Ct. 2010)

Employee/Employer Implicated: Counsel, Client

e-Lesson Learned: Costs of production of eDiscovery are borne by the producing party unless said production presents an undue burden to that party or the requesting party has agreed to pay.

Tweet This: Producing party is required to pay the costs of eDiscovery production, with limited exceptions.

Electronic Discovery requests can pose substantial financial burdens for the parties to a lawsuit.  According to the New York County Supreme Court, these costs are the responsibility of the party who is required to produce the e-discovery.  However, there are a few exceptions to this general rule, including discovery requests that present an undue burden to the producing party and situations in which the requesting party has already agreed to pay the costs of production.

Authored By: Marco Ferreira

Citation: 150 Nassau Assoc. LLC v. RC Dolner LLC, 96 A.D.3d 676 (N.Y. App. Div. 2012)

Employee/Employer Implicated: Counsel, Client

e-Lesson Learned: eDiscovery disputes should be resolved among the parties. When disputes reach the court, judges will likely not resolve the issue in the best manner for the parties and will instead choose the easiest and most efficient option.

Tweet This: Resolve eDiscovery disputes without judicial intervention to avoid mutually unrewarding results.

It's no secret that courts prefer settlements over protracted litigation. Because the court system encounters an incredibly heavy case load, parties are heavily encouraged to resolve disputes amongst themselves. This is especially true for discovery disputes. Parties are expected to deal with any hiccups in the discovery process through negotiation and discussion between each other, with little court intervention.

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.