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: 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.

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: 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.

Tweet This: Conference Recap - "Hot Topics in eDiscovery"

Attendees of "Hot Topics in E-Discovery," an advanced E-Discovery conference hosted by Suffolk University Law School, gained invaluable insight on Friday, as a panel of four National E-Discovery attorneys and two Massachusetts judges addressed a wide range of issues relating to technology and the law. The format was lively and engaging, and included a Mock Rule 26 role playing exercise, reviews of recent social media and preservation case law, and several opportunities for the panelists to field questions from the audience.

Authored By: Jennifer A. Connelly

Citation: Joseph Oats Holdings, Inc. v. RCM Digesters, Inc., 409 Fed. Appx. 498 (3d Cir. 2010)

Employee/Employer Implicated: Owner/Executive, Information Technology Manager, Misc. Employee.

e-Lesson Learned: After litigation was initiated, plaintiff, a joint venture company, downloaded and copied files from a VPN with defendant pursuant to a litigation hold initiated by co-plaintiffs. The Third Circuit held that this behavior is not a clear-cut case of violations of the anti-hacking statutes.

Tweet This: Parties to a Joint Venture May be Able to Copy Files After Dissolution

In Joseph Oats Holdings, Inc. v. RCM Digesters, Inc., the United States Court of Appeals for the Third Circuit vacated a District Court decision which held that plaintiffs had wrongfully copied defendants electronic information in violation of the California Unfair Competition Law. The dispute stemmed from a joint venture agreement between the parties which was repudiated by defendants shortly after its inception. In September 2006, the plaintiffs commenced an action alleging trademark infringement, unfair competition, breach of contract, etc. In October 2006, plaintiffs attorney sent a litigation hold letter to defendants, demanding the preservation of (among others) electronic documents related to the litigation.

Authored By: Catherine Kiernan

Citation: Managing Discovery of Electronic Information: A Pocket Guide for Judges (Second Edition)

Tweet This: Just Released! “Managing Discovery of Electronic Information: Pocket Guide for Judges” Review! (Part 3)

Welcome back for the third and final part of our series summarizing and highlighting the most important parts of the new electronic discovery pocket guide for federal judges.  Part One focused on the volume of electronic discovery now being used in judicial proceedings as well as proper procedures for Rule 16 conferences and the scope of electronic discovery under Rule 26.  Part Two focused on cost-shifting, subpoenas and implicated third parties, and form of production. Finally, Part Three focuses on privilege and waiver, preservation, spoliation, and sanctions.