Does Inadvertent Disclosure Destroy the Safe-Haven Afforded by Attorney-Client Privilege?

Last spring the District Court for the District of Colorado heard argument on Galena St. Fund, LP v. Wells Fargo Bank, N.A. Plaintiff Galena specifically appealed to the court to compel discovery with respect to 8,327 documents that defendant Wells Fargo claimed were privileged. Magistrate Judge Boyd N. Boland was asked to consider whether Wells Fargo was allowed to claim privilege from trust beneficiaries, or in the alternative, if Wells Fargo waived the attorney-client privilege in its entirety. Plaintiff’s motion consisted of the kitchen-sink brief: first, Wells Fargo could claim no privilege exists to prevent disclosure of records to a beneficiary of a trust; second, when Wells Fargo named a non-party at fault, they effectively waived privilege by making the documents at-issue in the case; third, Wells Fargo waived privilege by having an overbroad privilege log; and fourth, Wells Fargo waived simply by inadvertently disclosing during the course of discovery. In short, Judge Boland was not convinced. Only one exhibit in the universe of disclosure was deemed to be a waiver of privilege, based on the at-issue waiver rule. That document was an email chain discussing defendant’s non-party claim and deciding how to remit proceeds from federally insured RMBS loans.   The court recognized that Wells Fargo “cannot use the attorney-client privilege as a shield to hide communications that indicate that Wells Fargo directed [the non-party] on how to remit those proceeds.” Galena, 2014 WL 943115 at *12-13. Unfortunately for Galena, that was the only point for plaintiffs on the scoreboard. The court went on to explain that Wells Fargo’s contact with outside counsel did not waive privilege for Galena as a beneficiary of the trust, essentially because Wells Fargo’s reaching out to outside counsel was inspired by Galena’s threat of litigation. Furthermore, Judge Boland did not find defendants assertion of privilege to be overbroad, and recognized that inadvertent disclosure does not waive privilege in any meaningful sense. Rule 26 of the Federal Rules of Civil Procedure works in conjunction with Rule 502 of the Federal Rules of Evidence to provide a solution to this very situation. So long as the disclosure was truly inadvertent and the holder of the privilege took reasonable steps to remedy the problem, privilege is still maintained. In this situation, the “burden of showing that the privilege has not been waived remains with the party claiming the privilege.” Silverstein v. Federal Bureau of Prisons, 2009 WL 4949959 *10 (D. Colo. Dec. 14, 2009). In the other situations in which the court analyzed potential waiver here, the burden of establishing a waiver of the attorney-client privilege “rests with the party seeking to overcome the privilege.” People v. Madera, 112 P.3d 688, 690 (Colo. 2005). Galena couldn’t possibly meet that burden, for all 8,327 documents. Hopefully, Galena’s counsel can make some hay with the one record in which privilege was waived. Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015. Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Why Did the United States District Court Find Apple’s Proposed Protective Order Unduly Restrictive, Unreasonable, and Arbitrary?

Even Apple’s extremely valuable source code is not entitled to an arbitrary, unreasonable, and unduly restrictive protective order. Instead of adopting Apple’s proposed protective order, the United States District Court approved Farstone’s provision in its entirety. Farstone’s “reasonably necessary” standard was determined to be sufficient enough to protect Apple’s source code. In Farstone Tech., Inc. v. Apple, Inc., despite agreeing to a majority of the proposed protective order’s terms, Farstone and Apple disagreed on the terms relating to the production of Apple’s source code. Specifically, Apple and Farstone could not agree on the limitations that should apply to Farstone’s ability to print Apple’s source code. Apple proposed that the printing must be “necessary” to prepare court filings and pleadings, while Farstone proposed that it should be allowed to print source code that is “reasonably necessary” for those purposes. Additionally, Apple wanted to establish two other limitations in the protective order, including a thirty page threshold and a two hundred and fifty page total cap. The thirty page threshold limitation would presume any printing of thirty sequential pages of source code to be excessive. The court found that Apple’s proposed “necessary” term was unduly restrictive because Farstone will not likely be able to know what specific source code is necessary to prepare its case. Furthermore, the court found that Farstone’s “reasonably necessary” standard has a solid foundation in the Northern District of California’s Model Protective Order. Additionally, the court found Apple’s numerical limitations unreasonable because they appeared to be arbitrary. Apple failed to indicate how the thirty page threshold and the two hundred and fifty page cap “bear any actual relationship to the total source code available.” The court held that the “reasonably necessary” standard provided some guide and limit on the printing of source code and thus, approved Farstone’s source code printing provision. It is imperative that Apple protects its trade secrets, such as its extremely valuable source coding. However, Apple must avoid proposing arbitrary, unreasonable, and unduly restrictive provisions in its protective orders to avoid courts from adopting its adversaries’ proposed terms. If Apple wishes to include numerical limitations in the future, it should justify why the numerical limits are necessary for the protective order to be sufficient.            Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University. He will receive his J.D. from Seton Hall University School of Law in 2015. After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Responsibility Does An ESI Producing Party Have in Reviewing the Documents for Responsiveness?

ESI is usually massive and its discovery burdensome. The proportionality consideration is thus often a deciding factor for courts to impose a particular document production protocol. The rules of ESI request and production do not offer a clear line as to the form of production and the obligation of a producing party in further culling for responsiveness by reviewing search hits produced by computers. That allows courts to order production procedures with considerable flexibility. ESI production is governed by Rule 34 of FRCP, which states that a request of ESI production “may specify the form or forms in which electronically stored information is to be produced” (emphasis added). However, rule 34(b)(2)(E) specifies that: (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. As to the responsiveness review, nowhere in Rule 34 is it expressly stipulated how the review should be carried out and how the electronic search should be conducted, particularly in the context of ESI. The court in FDIC v. Bowden, by referencing other cases, developed some practical guide in applying the ESI production rules as to production forms and responsiveness review responsibility. In FDIC v. Bowden, the court, in the spirit of balancing discovery burdens and applying proportionality restriction, provided a reasonable ESI production procedure to follow in the particular context of the case. That context, involving a suit by FDIC who took over a failed bank for mismanagement against some prior executives of the bank, may not be as uncommon as it appears, particularly in the aftermath of the 2008 financial crisis resulting from broad adoption of ruthless practices by the financial industry. The position of the court is thus illuminating and offers much guidance to parties facing similar situations. Specifically in FDIC v. Bowden, a bank insured by the FDIC failed and the FDIC formed a separate legal entity, the FDIC-R, to act as a receiver and took over the bank. The FDIC-R then brought a bank mismanagement case against sixteen former directors and officers. The parties disputed as to the ESI document production protocol. Like many other mismanagement cases, the defendant had been running the bank and thus had some reasonable understanding of majority the bank’s (or the plaintiff’s) ESI and knew reasonably well what needed to be searched. This point seems to have carried much weight for the court to determine a suitable document production protocol. First, it is interesting to note that the court treated acceptable ESI production protocol by FDIC for defendants’ request for documents related to FDIC’s claims separately from defendants’ request for documents responsive to defendant’s defenses. As to the production of ESI related to the claims, the court first noted that since this type of case generally involves the bank’s takeover by the FDIC and thus the ESI has usually been modified in the course of FDIC’s running of the bank. Thus, irrespective of whether the defendants specified any document production form, FDIC cannot really satisfy the “course of business” option of Rule 34(b)(2)(E)(i) by simply providing ESI as kept by FDIC because the “course of business” was held by the court to mean the business of the bank, not of the FDIC. Under Rule 34, the FDIC thus needed to produce categorized documents according to defendant’s request. But there is no obligation for the responding party to examine every scrap of paper in its potentially voluminous files in order to comply with its discovery obligations. Rather, the court approved a two-stage scheme. In the first stage, FDIC only needs to conduct a diligent search, which involves developing a reasonably comprehensive electronic search strategy, categorize the resulting files according to the request, and produce the documents. However, the obligation (if there is one) for FDIC to review the responsiveness of the documents resulting from these initial searches may be obviated through a cooperative search query formulation on an equal access document database in a second stage document production. Specifically for the second stage, parties would agree to a set of search terms to apply to the Bank’s database maintained by FDIC-R. FDIC-R would then export the results into some review tool, called “Relativity” in this case. FDIC-R would provide full accessibility of “Relativity” to defendants. That way, the defendants can be afforded the opportunity to review the documents identified through the second round searches and select for production only the documents that the defendants desire. As for the defendant’s interest in corralling documents in support of their defense, the court held that FDIC-R must confer with defendants and run whatever reasonable searches they wish to run on the electronic records and make those hits available for review and refinement. This seems to be a natural way of dealing with request for document helping with defense since the defensive strategy is mostly with the defendants themselves. From this case, it appears that as long as a responding party conducts a reasonable and diligent electronic search according to the document request and produces hits, it does not immediately have the obligation to further review these hits for responsiveness. However, the court may ask the responding party to make their ESI database available for a collaborative search between the parties. The responding party can always produce these hits in a format kept in ordinary course of business irrespective of whether the requesting party has specified any form of production. Of course, the responding party can also produce the document by categorizing the document according to the request if it chooses to do so or if the ESI has been altered and becomes too burdensome to reverse to the form kept in ordinary course of business. Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a fourth-year evening student at Seton Hall University School of Law focusing on Patent Law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Would Happen To a Party that Fails To Take Necessary Measures To Preserve Relevant Video Footage? Sanctions, of Course!

It cannot be said enough: preservation of vital, relevant evidence should be handled with due care and diligence. This is not an obligation to take lightly or to be messed around with. When a party becomes aware of the relevance of certain evidence, it shall take all reasonable precautions to make sure nothing happens to it! In Clemons v. Correction Corporation of America, Inc., a pregnant prisoner in a private prison was complaining one night of severe pain. She was told by prison officials that she would be fine. Later the next day, Clemons’s symptoms only continued to grow worse, while the other prisoners desperately tried to get prison officials to help her, but to no avail. Finally, after a day of severe pain, bleeding, and vomiting, Clemons was transported to a hospital. While Clemons came out of this incident just fine, the same cannot be said of her baby, who did not survive premature labor. Clemons then brought a suit against the prison officials for failing to act promptly when she complained of severe pain the first time, leading to the death of her child. Being as this took place in a prison, there was surveillance video footage that would have shown the various movements of prison personnel and would have helped to establish a timeline of events. It should be obvious to everyone how relevant this video would be, and yet it was not preserved for trial! Now, prison officials did take steps to attempt to copy the footage before it was automatically overwritten. The assistant warden assigned a part-time maintenance worker the task of copying the video. When he was completed with this task, this maintenance worker reported to the assistant warden that he had successfully made the copies. However, no one checked the copy the maintenance worker had made until the original footage had already been destroyed. And, as luck would have it, the maintenance worker copied footage from the wrong day! Well now it was too late to get the original footage back, and the parties in this case were without the benefit of seeing what actually happened in the prison during the time in question. The judge remarked that sanctions would be warranted in this case if the prison officials who were responsible for spoliation acted with a culpable state of mind. Proof of intent to breach a duty to preserve is not necessary to satisfy this requirement, so while the prison officials did not intentionally destroy the video footage, they are not off the hook. The judge determined that there was an undisputed duty to preserve, Clemons did not delay in requesting that the video be preserved, the assistant warden knew how important the video was, and the prison officials exercised significantly less care than is required when tasked with preserving such important evidence. The judge ultimately imposed the sanction of an adverse inference jury instruction against the prison officials, because they had a duty to preserve the video, the video was clearly relevant to Clemons’s claims, and the failure to preserve the video was done with gross negligence. The prison officials argued that if any sanction must be imposed, it should be a permissive adverse inference jury instruction, rather than a mandatory one. Nevertheless, they lost this argument as well, because when a judge decides whether an adverse inference is permissive or mandatory, he must take account of the party’s degree of fault. Obviously, the prison officials’ degree of fault here was through the roof, so the inference was deemed mandatory. Let this serve as a lesson to all: do not place important legal obligations in the hands of part-time maintenance workers without even checking their work. This whole ordeal could have been avoided had the assistant warden taken a few minutes out of his day to make sure the correct footage was copied. Do not slack on the duty to preserve, or else sanctions will be waiting! Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of criminal law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Is a Request For Discovery Overbroad and of Speculative Relevance?

Overbroad and unwieldy discovery requests will not be tolerated and will be denied by the courts.  A party may not indiscriminately pursue wholesale production of discovery materials, especially when the party fails to provide any justification for the expansive discovery request.  Instead of allowing such overbroad discovery, the courts will limit the request to certain materials or agreed upon search terms. In Capital Ventures Int’l v. J.P. Morgan Mortgage Acquisition Corp., Capital Ventures International (“Capital”), the plaintiff, moved to compel J.P. Morgan Mortgage Acquisition Corp. (“J.P. Morgan”), the defendant, to provide further responses to its requests for production.  Capital sought the testimonial materials from all other investigations and litigations regarding JP Morgan’s residential mortgage-backed securities (“RMBS”) practices, all materials already produced in other RMBS actions or investigations, and several other discovery related requests.  In response, JP Morgan provided less burdensome alternatives to Capital’s requests. The court found that Capital’s indiscriminate requests for the wholesale production of all testimonial materials and already produced materials to be overbroad and not reasonably calculated to lead to relevant information.  The testimonial materials encompassed more than 150 million pages of documents and 153 deposition transcripts, while the materials produced in other RMBS actions and investigations included a massive document production of tens of millions of documents.  Moreover, the court found that Capital did not show a sufficient similarity between this case and all the other cases and failed to justify the expansive discovery.  The court accepted JP Morgan’s offer to produce approximately 50 deposition transcripts and to run agreed-upon search terms to sufficiently capture materials relevant to the issues in this case.  Beyond that, the court denied Capital’s remaining requests for testimonial materials and documents produced. The requesting party should avoid submitting overbroad requests for discovery that are not reasonably calculated to produce documents relevant to the issues in the case.  Several alternative strategies that can be learned from Capital Ventures International are:  (1) utilize programs that run search terms to capture relevant materials; (2) limit requests to certain relevant materials; and (3) provide sufficient justification for discovery requests that are potentially overbroad.           Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University.  He will receive his J.D. from Seton Hall University School of Law in 2015.  After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Can Your Facebook Page Be Used Against You? Social Media and the Criminal Trial

We all have personal social media pages. No matter who you are, you likely have an online presence in the form of a profile on one of the many sites available on the Internet. One who simply forgets about a newly created social profile can be the subject of worldwide scrutiny—the page is available for all to see. Who cares, right? Most likely, you will not have anything important on there. However, what happens when you are facing a criminal charge and the prosecution uses your social media profile in order to prove your guilt? Meet Aliaksandr Zhyltsou, a Ukrainian native living his life in Brooklyn, New York. All was well until Zhyltsou allegedly furnished Vladyslav Timku with a forged birth certificate, which claimed that Timku was the father of a baby daughter. Timku, as a cooperating witness for the government, admitted that he had sought the forged birth certificate in order to skirt his responsibility to military service in his native Ukraine. During the trail, Timku offered testimony that Zhyltsou had sent him the forged document from the gmail account “azmadeuz@gmail.com.” However, the prosecution was unable to offer any other evidence other than Timku’s testimony that tied Zhyltsou to this e-mail address. Therefore, more evidence was necessary in order to corroborate Timku’s claim. Special Agent Cline, from the State Department’s Diplomatic Security Service, provided the prosecution with the link between the e-mail address and the VK.com profile (the Russian equivalent of Facebook). Cline asserted that this profile on VK belonged to the defendant and was linked to the very same gmail account used to send the forged document to Timku. To prosecutors, it seemed like a slam-dunk:  here was the evidence needed to corroborate Timku’s testimony and sufficiently tie Zhyltsou to the Gmail account in question. Everything seemed in order; the profile contained a picture of the defendant, his work experience, and most importantly the “azmadeuz” Gmail account. Furthermore, the district court agreed that this was the Zhyltsou’s profile page and therefore the prosecution could use it as evidence to establish the link between the defendant and the gmail account. However, one pesky evidence rule could ruin it all in an instant, Federal Rule 901. Simply, Federal Rule 901 requires that in order to “authenticate or identify” a piece of evidence, a proponent asserting any form of evidence “must produce evidence sufficient to support a finding that the evidence is what the proponent claims it is.” Therefore, in the instant case, the prosecution had the duty to prove that this VK profile page belonged to Zhyltsou alone and was not created by any other person. However, in his haste to provide this vital piece of evidence, the prosecutor failed to adhere to this rule and the case was ultimately overturned on appeal. This case is a prime example of the need for all lawyers to have a firm understanding of electronic discovery. While it may be easy to access social media profiles and the like in order to obtain evidence against an opponent, that is only part of the process. It must be proven that the profile actually belongs to your opponent before you may use it against them as evidence in a court of law. In today’s world, it is not difficult to create fake profiles on such sites and therefore the court was correct in overturning this ruling. However, it is not outside of the realm of possibility that the prosecution could have tied Zhyltsou to this VK profile, it would have simply taken a little more digging and investigative work. A.S. Mitchell received his B.A. in Political Science from the University of Central Florida (2008). He will receive his J.D. from Seton Hall University School of Law in 2015. Presently, A.S. clerks for the Monmouth County Office of the Public Defender.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

When are Details of an Expert Analysis NOT Compelled?

Dover v. British Airways, PLC, involves a class action lawsuit where the plaintiffs alleged the airliner unlawfully imposed fuel surcharges on its frequent flyer program rewards flights.  The plaintiffs supported their claims with a regression analysis.  This statistical study, also known as the r-squared analysis, estimates the relationship between two variables and allegedly shows fuel surcharges were mostly unrelated to the changes of fuel prices.  British Airways served the plaintiffs with a request for all documents relating to the r-squared analysis.  However, that request was denied by Magistrate Judge Go, whose order was affirmed on appeal by District Judge Dearie. While the overarching issue is under what circumstances the details of an expert analysis will not be compelled during discovery, this case brings to light several additional sub-issues.  The defendants argued that the information, produced by a non-testifying expert, was not protectable work product and that any protection that may have attached was forfeited through inadvertent disclosure on two occasions. Tackling the latter issue, the plaintiffs’ first inadvertent disclosure occurred during the course of a 137-page document production.  More notably, the second inadvertent disclosure occurred during the course of the plaintiffs’ documents submission complying with the defendant’s request for metadata.  The plaintiffs inadvertently reproduced the unredacted version of a particular spreadsheet that contained experts’ names and calculations.  As this was the second of the two inadvertent disclosures, the court expressly acknowledged that the “plaintiffs should have been on notice with the first inadvertent disclosure that the spreadsheets contained protected information and should have carefully reviewed the spreadsheets before providing them to their vendor and producing them to defendant.”  But, under the stipulated protective order signed by both parties, a claw back provision recited that the inadvertent disclosure of any material that qualifies as protected information does not waive the privilege on privileged information.  The law with respect to such a protective order invokes the waiver of privilege only if production was completely reckless, and the court did not find completely reckless behavior in this instance.  Rather, the court simply found the plaintiffs were careless in twice disclosing a few rows and columns on two pages of a 34-page spreadsheet. Addressing the issue of the fact that the r-squared analysis was performed at the pre-filing stage by a non-testifying expert, both Magistrate Judge Go and District Judge Dearie paid particularly close attention to the underlying fairness at stake and addressed the issue of whether it was fair for plaintiffs to submit an expert analysis in their complaint—that survived a motion to dismiss—and then disclaim the analysis in the future.  Because the plaintiffs disclaimed future reliance on the analysis conducted by their consulting expert, Federal Rule of Civil Procedure 26(b)(4)(D) is invoked for its protection of the disclosure of information from non-testifying, consulting experts.  Under this rule, discovery is only permitted upon a showing that it is impracticable for the party to obtain facts or opinions on the same subject by other means.  Since extraordinary circumstances were not found, details relating to the analysis were not compelled. Although it may seem unfair, the r-squared analysis was not the reason the complaint survived the motion to dismiss; the court was required to proceed on the assumption that factual allegations are true even if their truth seems doubtful, and consideration of the attacks on the consulting expert’s analysis would not factor into assessing the complaint’s plausibility. Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Discretion Will Not Be In Your Favor If You Give the U.S. Department of Commerce Unverifiable Financial Records

On October 7, 1992, the United States Department of Commerce created an antidumping on extruded rubber thread in Malaysia.  The intent of antidumping orders is to discourage the “dumping” of foreign goods into the U.S. for substantially lower prices.  The Department of Commerce sought financial records from international companies involved in the importing and exporting of the antidumping order(s), in order to create accurate administrative reviews of the collected information.  From the Department. of Commerce’s results, the U.S. determines dumping margins for each “dumping” importer.  If there is a challenge to the Department of Commerce’s final results, the court that oversaw the case would sustain the Department of Commerce’s final results as long as they are supported by substantial evidence on the record.  “Substantial evidence” is defined as more than a “mere scintilla” supporting a conclusion. The main issue being challenged by Heveafil is that the Department of Commerce refused to base Heveafil’s dumping margin on their bill of materials, determining the bill of materials to have failed verification.  The court held that the Department of Commerce was within its discretion because Heveafil’s production of the bill of materials, downloaded on a computer disk in response to the government’s questionnaires and requests for information, was not generated “in the ordinary course of business,” which the government required as part of verification of documents.  Since, the bill of materials was originally maintained on database, that was later purged, the computer disk produced did not meet the government’s verification requirements.  Alternatively, Commerce attempted to verify the information through other sources and documents but Heveafil’s 1996 Budget Report was not given its entirety and the partial Budget Report and inventory records did not correlate. Given the unverified documents, the court reasoned that the Department of Commerce could reject the financial records in total, even though Heveafil challenged that it only failed verification for a portion of its information.  The government stated in its final results, which the court agreed with, that it does not make sense to only reject the part of Heveafil’s records that were unverifiable since the Department of Commerce was doing price-to-price comparisons.  Due to Department of Commerce’s rejection of Heveafil’s records in total, the government used adverse inferences in assigning Heveafil’s dumping margin.  Heveafil challenged the government’s determination that Heveafil did not cooperate during the review, which is necessary to show, along with not submitting verified data, in order to use adverse inferences.  However, the court sustained the government’s determination that Heveafil did not cooperate to the best of its abilities, due to the fact that Heveafil was given plenty of notice that the government required “source documents” for review and was aware of the process since Heaveafil had previously participated in reviews, yet deleted the relevant bills of material.  The Department of Commerce defines “source documents” as documents that are maintained in the normal course or business, which the computer disk duplication of the bills of materials was not. The court went on to sustain all but one determination by the Department of Commerce despite Heveafil’s, and fellow plaintiff, Filati’s, challenges.  The government chose to select the highest rate calculated in a prior administrative review in determining the dumping margin for each company.  The government’s selection of the highest dumping margin chosen for plaintiffs was sustained due to the discretion given to Commerce after having shown that adverse inferences were appropriate.

Facebook Fails: Can I Delete my Facebook while a Lawsuit is Pending?

The defendant in personal injury litigation commonly requests discovery concerning a plaintiff’s Facebook account.  The reason such requests are made is that pictures on Facebook may reveal the “injured” plaintiff dancing on top of a bar table, skiing, traveling, etc.  These damaging photos may prove that the plaintiff’s injury is not as severe as he or she claims and could result in dismissal of the case.  Therefore, it is not uncommon for a plaintiff to delete his or her Facebook account in order to conceal any damaging pictures.  The deletion of a Facebook account, however, may result in sanctions such as an adverse inference jury instruction.[1] In Gato v. United Airlines, Inc., the plaintiff was injured while working for the defendant.  During the litigation, the plaintiff permanently deleted his Facebook account.  The defendant motioned for an adverse inference jury instruction claiming that the deletion of the Facebook account destroyed relevant evidence, thereby prejudicing the defendant. In granting the sanction, the district of New Jersey adopted a very low standard as to what a litigant must show in order to obtain an adverse inference jury instruction.  The court held that “so long as evidence is relevant, the offending party’s culpability is largely irrelevant, as it cannot be denied that the opposing party has been prejudiced.”  This seemingly simple sentence has enormous implications for litigants in the district of New Jersey for two reasons. First, it means that as long as the destroyed evidence was relevant, a litigant need not prove that the adversary intentionally (or even negligently) destroyed evidence.  The lack of state of mind requirement eliminates what is often the most difficult element to prove when seeking spoliation sanctions.  Without the need to prove a litigant’s culpability in destroying the evidence, the court seems to impose a form of strict liability upon the destroying party.  The only requirement imposed by the court is that the party seeking sanctions prove that the destroyed evidence was relevant.  This is a significant deviation from the traditional method employed by courts which requires proof that a party was at least negligent in destroying the evidence. Second, the court indicates that as long as the evidence is relevant, it will presume that the destruction of the evidence was prejudicial to the opposing party.  This eliminates the need for the party seeking sanctions to prove that it was prejudiced by the missing evidence.  Instead, the party only needs to prove that the evidence was relevant. Notably, the court explained that the defendants in Gato were “prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff’s damages and credibility.”  In other words, the defendant in Gato did not have to even prove that the destroyed evidence was undoubtedly relevant—the defendant only had to prove that the evidence was potentially relevant. In sum, the District of New Jersey imposed an adverse inference jury instruction simply because the destroyed evidence was potentially relevant to the litigation.  The court did not require the defendant to show that it was prejudiced by the destruction, nor did the court require any showing as to the Plaintiff’s state of mind in destroying the evidence.  Moving forward, litigants must be extra careful in their efforts to preserve evidence relevant to litigation. E-DiscoParty, a Seton Hall University School of Law graduate (Class of 2014), served on the executive board of the Seton Hall Law Review and is a member of the Interscholastic Moot Court Board.  Currently, E-DiscoParty clerks for a Justice on the Supreme Court of New Jersey.  [1] An adverse inference jury instruction is a powerful sanction where the court advises the jury to presume that any destroyed or missing evidence contained detrimental information about the party that destroyed or lost the evidence.

Court Rules In Favor for Precision in Regards to Limited Search Terms Used for Screening Privileged Documents

Whoever thinks that the legal world does not involve math is proven wrong through the Special Master’s analysis in Dornoch Holdings Int’l, LLC v. Conagra Foods, Lamb Weston, Inc. The heart of the opinion involves a percentage breakdown of search terms and their correlation of precision in regard to privileged documents. In Dornoch, the defendants objected to the privilege log of documents for three reasons: 1) the documents on the privilege log, except for communications between the plaintiffs and their outside litigation counsel dated after March 22, 2010, have not been established by the plaintiffs to be privileged; 2) The privilege log was created using overly broad search terms and has not been substantively reviewed, thus, the log contains numerous non-privileged documents; and 3) Non-correspondence documents listed on the privilege log are not privileged. In response to this objection, the court allowed the Special Master to make a recommendation on these objections, specifically allowing the Special Master to review “a statistically significant number of randomly selected documents to confirm the accuracy of the screening method.” The privilege documents log was assembled using search terms created and limited by plaintiff’s counsels and an eDiscovery technology consulting firm. And so, the Special Master did as the Court requested and took a sampling from the log to determine the effectiveness of the screen’s search terms. The consulting firm determined that “1,740 documents would need to be human reviewed” to determine whether the log was effectively precise. The Special Master decided to review 1,813 documents just to ensure it was an effective review. After explaining that Idaho law regarding attorney-client privilege and work product doctrine apply, the Special Master reviewed the documents and determined that 1,249 were not privileged documents and 564 were privileged. The Special Master also went into much detail about the effectiveness of the specific search terms that were used. Specifically, the Special Master determined that 73 percent of the search terms were highly correlated to actual privileged documents. Additionally, the Special Master determined that “those terms which identified a correlation with actual privilege of 59 percent or greater, showed a strong correlation with privilege.” Once the Special Master completed this analysis, the Special Master recommended that the documents that fall below that 59 percent correlation should be released and not kept private. Then, the plaintiffs could also decide to conduct another review of the remaining privileged documents to figure out if more should be released. Finally, the Special Master noted that it does not matter whether documents are listed as “correspondence” or “non-correspondence” for them to be determined to be privilege or not. These documents should be reviewed just as the others. Overall, the Special Master recommended that the court sustain the first objection, and overrule the third objection. As to the second objection, the court recommended the following: “(1) Concur with the selection of a 59% or greater correlation of search term precision for a document to remain withheld as privileged; (2) Allow Defendants the opportunity to further challenge the assertion of privilege above that 59% threshold, if they so choose, by requesting that the Special Master conduct a further targeted review for privilege and release any non-privileged documents discovered. The Defendants will be responsible for cost of this further analysis, if requested; (3) Release the documents associated with the less precise terms that fall beneath the 59% correlation threshold and remove them from the privilege log; (4) Prior to that release, allow Plaintiffs the opportunity to conduct a privilege review of all or a portion of the population to be released and create a supplemental privilege log. The Plaintiffs will be responsible for cost of this further analysis, if Plaintiffs chose to conduct it.”

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