Outside Counsel

All That Glitters is NOT Gold

Plaintiffs asked Defendants for documents to be scanned and produced as searchable PDFs.  Defendants did exactly that.  So, there’s no problem, right?  Wrong.  Plaintiffs felt a little slighted, to say the least, after receiving the unorganized files.  If only they asked for hardcopies instead. The court found that the term “documents” as defined in FRCP 34(b)(2)(E)(i) does not include ESI, so the rule’s requirement that documents be produced either in the usual course of business or labeled to correspond to categories in the request does not apply to ESI.  Once the parties agreed to transfer hard copy documents in an electronic form, that means of production is governed by the rules for ESI, and Plaintiffs in this case met their obligations under this rule without organizing or labeling the disclosed ESI. Plaintiffs wanted Defendants to identify the particular discovery request to which each document responds, but to be fair, Defendants already went through the effort of scanning the approximately 20,000 documents.  Plaintiffs tried to argue that Defendants’ storage of the documents in hard copy meant that scanning the documents in order to produce them for discovery should not abdicate Defendants’ responsibility to produce them as organized in the ordinary course of business.  It may seem surprising this argument was unsuccessful, but is it really? The court found that the parties stipulated out of FRCP 34(b)(2)(E)’s default provisions when the Plaintiffs’ requested items in scanned electronic form, and that Plaintiffs technically received exactly what they asked for.  Another hang-up for the Plaintiffs was FRCP 34(b)(2)(E)(iii) not requireing a party to produce the same electronically stored information in more than one form, which includes hardcopies. Beyond the facts and the ruling, this case should stand for the proposition that blindly requesting ESI is ill-advised.  Parties should know enough to know exactly what they need from a discovery request, and how to make that request as accurately and effectively as possible.  This decision may not exist if Plaintiffs simply asked for the documents to be scanned and produced in the usual course of business.  While Defendants may not have eagerly acceded to such a request, the request’s denial would have raised some red flags for Plaintiffs and forecasted what would be their eventual dissatisfaction if they merely asked for the documents to be scanned as searchable PDFs. 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.

When Can Inadvertent Disclosure Constitute Waiver of Privilege? Factors To Ensure The Maintenance of Privilege

The attorney-client privilege is not as inclusive as some may think. The privilege protects confidential communications between attorney and client in order to “encourage full and frank communication between attorneys and their clients.” The attorney-client privilege only applies if the following conditions are met. The asserted holder of the privilege is or sought to become a client; The person to whom the communication was made is an attorney; The communication relates to a fact of which the attorney was informed; (a) By the client, (b) Without the presence of strangers, (c) For the purpose of securing an opinion of law or legal services; and The privilege has been claimed and not subsequently waived. Commonly, disclosure of confidential information functions as an abdication of attorney-client privilege. Unintentional disclosure, however, does not constitute a waiver of the attorney-client privilege if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error. Courts also look to factors such as the quantity of the disclosure and the overriding interests of justice when determining whether the attorney-client privilege was inadvertently waived. In this case, a discovery dispute arose because the defendant unintentionally disclosed two privileged documents to the plaintiff. The first document was a letter from the defendant to an attorney for the purpose of soliciting legal advice. The second document was a response letter from the attorney providing counsel to the defendant. The court here found that these two documents are clearly covered by attorney-client privilege. So, the issue then became whether or not the defense waived attorney-client privilege when the party unintentionally disclosed the privileged documents. The court first considered the precautions taken by the defense to prevent accidental disclosures and discovered that there were none. For one, the defendant did not maintain a privilege log. Additionally, the defense did not even mark or designate the letters as confidential. For purposes of maintaining privilege, this factor weighed heavily against the defendant. The next factor the court looked to was the number of inadvertently disclosed documents. These documents were a mere three pages among a total of 3,500 pages of discovery documents. This factor weighed in favor of maintaining privilege. The third factor considered was the extent of privileged information disclosed. This factor weighed in favor of waiver because the information contained on the letters was clearly privileged. The court reasoned that the extent of the defendant’s carelessness weighed against maintenance of attorney-client privilege. The fourth factor considered was the extent of any delay in correcting the inadvertent disclosure. Since the defense took more than three months to attempt to rectify their mistake, this factor was found to be in favor of waiver. As to the last factor, the court stated that the defense did not offer any explanation as to why, in the overriding interest of justice, the letters should still be privileged. Since the majority of factors were found to be in favor of the waiver of attorney-client privilege, the court held that the defense has waived attorney-client privilege with respect to the letters. It is imperative to keep in mind that the attorney-client privilege can be waived unintentionally. One of the most effective ways to prevent an inadvertent disclosure is to maintain a preventative mechanism. Mark all privileged documents as privileged, keep a detailed privilege log, and constantly double check all disclosed documents so any mistake can be corrected quickly. If these steps are followed, a party will likely be able to maintain privilege even if the party inadvertently discloses privileged documents. Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently Daniel is serving as a legal intern in the Juvenile Justice Clinic. After graduation Daniel will clerk for a trial judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here

What Kind of Paper Trail Is Inside Your Computer? Deleting It Is Not As Simple As Pressing Delete

Have you ever wondered what happens to electronic files when you press the delete button? Or what happens when you put them in the “e-trash?”  You may be surprised to find out that getting rid of electronic material is not as easy as it may seem.  And in many cases, actually deleting or tampering with electronic files or data can cause a great big legal headache. The case of First Sr. Fin. Group LLC v. Watchdog explores and explains the issues that can arise when a person tries to permanently delete or tamper with electronic material that should have been protected and preserved for trial. Here, Defendant was asked to preserve the computer she used to make allegedly disparaging and defamatory remarks under her pseudonym, “watchdog.”  The problem is that the computer was some how wiped clean of all electronic data after she was asked to it turn over to the experts. Now, let’s back track for a moment.  Why is it such a big deal that data was deleted?  Don’t people delete files all the time?  The key to this problem is that electronic files and data can’t just be deleted unless very deliberate actions are taken. When a file is technically “deleted,” it is simply hidden in the background of the computer and marked as, what we will call, disposable data.  Then, when the computer runs out of room to store more data, the disposable data is overwritten. Now, this doesn’t mean there is absolutely no way to wipe the data from a computer. As the saying goes, if there is a will, there is a way! (Even is the way is frowned upon and could present major legal repercussions.)  In this case, someone used two programs called Erase Pro and CCleaner to effectively wipe MOST of the data from the computer involved in the case. In legal speak, this is called spoliation of evidence, and if proven, it can mean serious repercussions.  Proving a person intentionally tampered with or destroyed evidence requires proof that a person:  (1) had control over the evidence; (2) the evidence had relevance to the claim; (3) actually suppressed or withheld the evidence; and (4) that person had a duty to preserve the evidence. In this case, the judge held Defendant was liable for the spoliation of the evidence because Defendant met all of the above factors.  However, factors 2 and 3 are particularly relevant to eDiscovery. In regards to the second element (whether the computer data was relevant to the claim), the judge turned to the data fragments recovered by the expert.  When a computer is wiped clean with Erase Pro and CCleaner, it still leaves behind fragments of data, which are like pieces of a ripped up letter.  In this case, the Judge determined that the data fragments provided enough information to show that the computer data was relevant to the case. As such, the second element was satisfied. In regards to element 3 (whether the data was actually suppressed or withheld), the Judge’s main inquiry revolved around whether the use of CCleaner and Erase Pro is considered intentional.  As you might imagine, it was pretty obvious that the use of two separate types of software with the distinct purpose to clear the computer of data is an intentional act.  As such, the third element was satisfied. The Defendant got lucky with a minor sanction of a fine, paying for the computer expert, and paying the other parties attorney’s fees related to the investigation of the computer.  However, this was nothing compared to those available for spoliation charges.  In more serious cases, the judge could hold that an adverse inference be drawn from the missing evidence, or the party could pay all fees related to the case.  In the most extreme cases, the Judge could choose to dismiss the case or find the case in favor of opposing party. Overall, when it comes to electronic data there is one thing to remember.  Electronic data is extremely difficult to get rid of, and actually getting rid of it can mean serious legal consequences. Victoria O’Connor Blazeski (formerly Victoria L. O’Connor) received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015.  Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting.  Victoria is a former D3 college basketball player, and she has an interest in tax law and civil litigation.  After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey.   Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Is “Discovery On Discovery” Improper?, Part 2

In Freedman v. Weatherford Int’l, Ltd., Weatherford hired law firm Latham & Watkins to review allegations of security fraud made to Weatherford’s whistleblower hotline. Latham found no evidence of fraud. However, a second investigation was conducted by Davis Polk & Wardwell, LLP. Plaintiff’s alleged that Davis’s second investigation reveal that Latham actually discovered evidence of wrongdoing. Plaintiffs sought reports comparing the results of Weatherford’s production with search terms and productions related to the two investigations and search terms proposed by the plaintiff, in order to test the adequacy and reasonableness of Weatherford’s initial production. Weatherford objected, noting that Plaintiff had no legal basis for its request and its requested production was “hugely burdensome.” The District Court for the Southern District of New York held that the plaintiff’s request was “outside the bounds of Rule 26 of the Federal Rules of Civil Procedure . . . [because they did] . . . not proffer an adequate factual basis for their belief that the production [was] deficient.” Plaintiff’s claim that Weatherford’s production was deficient because 85% of the pages produced related to different case was too conclusory. Furthermore, the Court was not surprised that Weatherford used dramatically different search terms here compared to search terms used in the two investigations and a related action, because of the differing class periods and varying false statements. The court also addresses arguments related to Subject matter waiver and the crime-fraud exception of the attorney-client privilege, but these arguments were not related to e-discovery. Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Should a Party Inform its Adversary that it has Inadvertently Disclosed Privileged Information During Discovery in Order to maintain that Information’s Privileged Status? Certainly in Less Time than Three Months!

Please be very careful when turning over discovery to adversaries! Every reasonable precaution should be made to ensure that privileged information is not being turned over. Obviously, accidents do happen and no matter how careful a party may be, sometimes privileged information will slip by and be disclosed to the opposing party. However, in such an instance, do not wait three months to inform the opposing party about the error. Well, only if the disclosing party wants to keep the information privileged, of course! Franklin Square Associates has provided a blueprint for what not to do when privileged information has been inadvertently turned over. Suit has been brought against them by the Gloucester Township Housing Authority in a dispute over the availability of subsidized residential housing. Among the thousands of documents that Franklin Square turned over in discovery were two letters (amounting to three of the thirty-five hundred pages produced) between the Managing Agent of Franklin Square and his attorney. Defendant Shaun Donovan of the U.S. Department of Housing and Urban Development (HUD) brought a motion asking judge to declare that the letters were not covered by the attorney-client privilege, but that even if they were, the privilege has been waived due to their disclosure in discovery. Without question, the court said, the letters contained privileged information. They were communications between a lawyer and her client, in which legal advice was sought and offered. They represented the quintessential example of what is covered by the attorney-client privilege. So the issue here, then, was whether the privilege had been waived. To make this determination, the court analyzed the facts of the case through five factors the Third Circuit uses to decide whether a party’s disclosure has waived privilege: (1) the precautions taken to prevent inadvertent disclosure; (2) the quantity of inadvertent disclosures; (3) the extent of the disclosure; (4) the extent of any delay and the measures taken to rectify the disclosure; and (5) any overriding interests of justice. Regarding the first factor, the court noted that Franklin Square failed to set forth any precautions taken to avoid this inadvertent disclosure! They failed to produce a privilege log and failed to mark any documents as “confidential” or “privileged.” Franklin Square instead said that there were just too many documents to go through. If a party has resorted to using that as an excuse, it is very difficult to feel sympathy for them and the predicament they find themselves in. Parties must be more careful than this! The court found that this factor favored a finding of waiver. Regarding the second factor, the court noted that this current motion to declare the letters unprivileged concerns just three out of thirty-five hundred documents. Therefore, the inadvertent disclosure was de minimis in the grand scheme of things. This was another factor favoring waiver. Regarding the third factor, the court did not feel badly for Franklin Square in this situation because the production of these letters concerned clearly privileged information and yet Franklin Square did nothing to mark the documents as confidential or as communications between an attorney and her client. These letters warranted more scrutiny than that, and so due to the carelessness at play here, the court found this factor to be yet another in favor of a finding of waiver. Regarding the fourth factor, the court found that Franklin Square did not attempt to rectify the situation until more than three months after the inadvertent disclosure! Not only that, these same letters had been produced in a prior state court hearing, meaning these documents had now been disclosed twice! Clearly this favored a finding of waiver. Finally, regarding the fifth factor, the court did not find any overriding interests of justice here to warrant maintaining the privileged status of the documents despite the multiple errors committed by Franklin Square in this case. Therefore, the court held in favor of HUD, and declared that attorney-client privilege had been waived in regards to the letters. The takeaway here? Always, always, always take all reasonable precautions to ensure that privileged information is not being produced in discovery. Even if this information is somehow turned over, notify the opposing party right away to avoid waiving the privileged nature of those documents. Do not wait more than three months to do something about it! 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.

Can Attorney-Client Privilege Be Used As Both A Sword And A Shield? No, Not When Attorney-Client Privilege Is Being Used As A Litigation Strategy

Attorney-client privilege is a complex and often misunderstood aspect of discovery. This privilege generally protects a party from being compelled to disclose confidential correspondence between the party and the party’s attorney. The traditional purpose of attorney-client privilege is to serve as a shield to prevent a party from being forced to turn over the strategies, opinions, and work product of an attorney. However, it is possible, under the right circumstances, for a party to waive the privilege in order to prove a fact vital to the party’s case. Such was the circumstances in Cormack v. United States. In this case, the plaintiff claimed that a mail-sorting system used by the United States Postal Service (USPS) is infringing on his patent for the device. The USPS and the manufacturer of the mail-sorting system, Northrop Grumman, claimed that the mail-sorting system utilized by the USPS is an independent creation. The issue in the case became the date on which the plaintiff conceived the invention and whether that date was earlier than the date on which the USPS’s manufacturer conceived the invention. The defendant was able to prove conception of the idea in July 2004. The plaintiff proceeded to waive attorney-client privilege and disclose correspondence with his attorney regarding applying for a patent for the mail-sorting device dated November 2003. After the disclosure by the plaintiff, the defendant submitted a motion to compel the plaintiff to turn over all other documents being withheld under the guise of attorney-client privilege. The court stated that the proper standard for compelling privileged information is “all other communications relating to the same subject matter.” The court was particularly concerned with the concept of fairness stating, “the aim is to prevent a party from disclosing communications supporting its position while simultaneously withholding communications that do not.” In this case, the subject matter was determined to be all documents regarding the date of plaintiff’s conception of his mail-sorter idea. The plaintiff sought to maintain privilege for numerous communications between himself and his attorney both before and after the date a patent was filed for. The court stated that the plaintiff must disclose any documents regarding conception of the mail-sorter regardless of the date on which the communications were created. The court specifically stated, “[the plaintiff’s] privilege waiver to apply to communications related to the date of conception, date of reduction to practice, and due diligence, generated both before and after the filing of the patent application.” The court did however create a distinction between communications regarding applying for the patent and emails regarding defending the patent. The court also held that the plaintiff has no obligation to produce documents and communications attendant to patent prosecutions relating to the other topics. Emails between the plaintiff and his attorney leading up to the prosecution of the patent were also deemed to be protected by privilege. It is imperative to consider the evidentiary value of all documents relating to the same subject matter before waiving attorney-client privilege. If you seek to admit certain documents regarding a certain subject matter covered by attorney-client privilege, all documents relating to the same subject matter must also be turned over to your opponent. Courts are concerned with notions of fairness and will generally not allow a party to selectively waive privilege in order to use it as a sword and a shield. Before waiving privilege, separate documents into distinctions of subject matter, do not make arbitrary distinctions between documents. Then weigh the potentially beneficial and potentially harmful value of all the documents relating to the subject matter in question. Once the value has been determined, only waive the privilege if, on the whole, the documents are clearly beneficial. Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently Daniel is serving as a legal intern in the Juvenile Justice Clinic. After graduation Daniel will clerk for a trial judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here

How Generous Can a Court Be in Rewarding Legal Fees As a Result of Violation of Discovery Rules?

When a party’s violation of discovery rules causes added legal expenses to its adversarial, courts appear to be very generous in approving fee applications. An application only needs to provide itemized ledger entries of attorney/paralegal hours with simple explanation of the relation of the corresponding work to the discovery violation. Courts are going to exercise broad discretion and place the burden on the violating party to show with particularity why each logged hour is unreasonable. It appears that courts will only disprove hours that are obviously excessive or clearly redundant on the face of the ledger. In Tangible Value v. Town Sports International, Inc., Tangible Value (“TV”) sued the defendants for not paying for services provided according to an oral contract, which the defendants denied. The bulk of its claim was reflected in an invoice stating an unpaid balance of about $800,000. Upon discovery request by the defendant, TV, refused to produce metadata and other documents related to the invoice. The court then ordered such production. During the course of the discovery, TV repeatedly provided insufficient documentation as requested and the defendant had to examine the documents and determine their sufficiency, converse with counsels of TV, and initiate court conferences multiple times to compel additional documents. It was later discovered that the invoice was not real but was created by TV after the fact to justify a damage claim. At that point, the defendant filed a motion for contempt and sanction. The court granted the motion. The defendants then filed their fee application seeking to recoup legal expenses as a result of TV’s discovery violation, which  totaled 423.2 hours at rates varying between $180-$562 for attorneys (associates and partners) and $95-$153 for paralegals. The Magistrate Judge of the District Court for the District of New Jersey generously awarded the defendants 384 hours. Several observations can be made on how the court dealt with various legal charges. First, court deemed all charging rates reasonable by comparing the proposed rates to the rates approved previously by the court in other matters. Second, the court automatically approved any hours that were not objected to by TV. Third, once specific objections of hours were made, the court used a great deal of discretion and required particular showing why the hours objected were unreasonable. Fourth, the court approved internal attorney conferences without much hesitation. Fifth, hours logged for preparation for court conference were approved 100%. Sixth, the court was only willing to consider obviously excessive or unnecessarily redundant work as unreasonable. Seventh and most astonishingly, the court was extremely generous in allowing hours associated with legal research and drafting of Motion for Sanction and Fee application, approving a whopping 250 hours, or over 6 weeks’ worth of work for a single attorney! For my fellow law students, that is half of one entire law school semester. Thus, for executives and legal counsels in similar situations, make a good faith effort to obey the discovery request. Otherwise, the other side will surely take full advantage of the generosity of the court and obtain a humongous reimbursement in legal fees. For easy reference, the table below summarizes the court’s disposition of all hours included in defendants’ fee application in the Tangible Value case. Note: DP stands for Document Production. Fee Items Hours Applied Court Comments Reduction of Hours by Court Assessment of deficiencies in initial DP 8.3 none Communications with TV Re deficiencies in initial DP 9.8 2 Court conference/preparation Re deficiencies in initial DP 1.8 none Communications with TV Re deficiencies in its 2nd DP 5.8 none Court conference/preparation Re deficiencies in 2nd DP 3.1 none Investigation of the invoice and assessment of documents related to the derivation of the invoice 19.2 Multiple paralegals on same task. 4.9 Communications with TV Re deficiencies in its DP concerning the invoice 10.7 Two entries on similar work. 4.4 Court conference Re the deficiencies in DP concerning the invoice 0.8 none Assessment of deficiencies in the 3rd DP 2.2 none Communications with TV Re the deficiencies in 3rd DP 2.4 none Assessment of the 4th DP 1.5 none Assessment of the 5th DP 7 Ledger is unclear. 0.5 Communications with TV Re deficiencies in the 5th DP 1 none Assessment of 6th DP and accuracy of TV certifications 5.9 none Communications Re deficiencies in 6th DP and accuracy of certifications 7.7 none Communication with TV Re deficiencies in 7th DP 1.3 none Communication with TV Re deficiencies in 8th DP 0.5 none Letter to Court summarizing DP deficiencies and seeking permission to move to compel 3.9 none Motion to Compel, including drafting, legal research. 23.5 none Oral argument Re Motion to Compel and Status Conference with court. 4.4 none Revision of Scheduling Orders throughout litigation due to discovery delays 4.2 none Letter request for permission to move for sanction, including review and legal research 9.8 Two attorneys repeated same task. 2 Review of TV response to the letter above 8.2 none Motion for Sanction, including legal research and drafting 80.8 none Review of TV response for the Motion for Sanction, preparation of reply, and review of Magistrate Report and Recommendations. 28.1 The 4 hours for reviewing Court Report excessive. 1 Fee application including review of records and case law research 89.9 Excessive only by 12.2 hours 12.2 Review of TV’s opposition to the Fee Application and draft reply 77.7 Excessive  only  by 12.2 hours 12.2 Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a4th year evening student at Seton Hall University School of Law focusing on patent law. 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How Are Electronic Materials Slipping Through the Cracks? The Scope of eDiscovery Is Limited to Discovery Requests, Not search Terms

We have entered the age of information!  Every conversation, e-mail, text message, attachment, voicemail, and other electronic data are being stored all day, every day.  These types of electronically stored information (a.k.a. “ESI”) are regularly used during litigation.  So why is there a problem collecting information for trial?  Lawyers need to search through these massive amounts of ESI in order to provide the materials to the opposing party before trial.  This process is known as eDiscovery, or electronic discovery, and it has raised a number of issues regarding who, what, where, when, why, and how ESI is produced. The issue discussed here is what defines the scope of eDiscovery.  In ChenOster v. Goldman, Sachs & Co., the court made it clear that the scope of discovery, whether electronic or not, is still defined by traditional discovery requests and demands.  However, what brought forward this conclusion? Traditionally, the process of discovery is the period when lawyers exchange requests and demands for information, documents, and other materials that may be used in the case.  Generally, this can be broken down into three steps: (1) Requesting party will make a discovery request; (2) the opposing party will use any means she deems appropriate to find the materials; and (3) the opposing party will respond to the request in the form of producing the materials or an objection. However, in Chen-Oster, the parties deviated slightly from this traditional process.  Here, the requesting party, the plaintiffs, made traditional discovery requests for ESI.  Then the plaintiffs negotiated with the opposing party, the defendants, in order to determine what search terms would be used to filter through the enormous amounts of ESI available. Now, why is this different from a traditional discovery process?  This is different because both parties collaborated to determine how the ESI requested would be located. The issue presented in Chen-Oster begins upon production of the ESI by the defendants.  The defendants only produced the ESI they deemed to be relevant to the discovery requests set forth by the plaintiffs.  However, the plaintiffs intended to collect all ESI produced by the search terms they agreed upon. This brings us back to the main question:  what defines the scope of eDiscovery?  It is either all ESI located under the agreed upon search terms; or it is only ESI located under the search terms that are relevant to the original discovery request. According to Chen-Oster, an agreement to use specific search terms or discovery protocol does not override discovery demands and requests.  In other words, search terms used to filter through electronic data do not define the scope of discovery.  The scope of discovery is determined by the discovery requests rendered.    Victoria O’Connor Blazeski received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015.  Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting.  Victoria is a former D3 college basketball player, and she has an interest in tax law and civil litigation.  After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey.   Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Happens When ESI Is Lost?

Willfully destroying evidence? Failing to preserve materially relevant evidence? These are just two of the allegations Lisa Alter has made against the Rocky Point School District. Prior to submitting her complaint, Ms. Alter had accused the school district of similar wrongdoings. Alter worked for the Rocky Point School District holding various positions over the years. While employed as the Coordinator of Central Registration/Administrative Assistant within the Human Resources department, Alter alleges that she was subject to a hostile work environment on the basis of her gender. Further, Alter claims that she was retaliated against for complaining to the School District about it. The opinion here is related to a matter regarding electronic discovery in this case. The plaintiff filed a motion to compel discovery and for sanctions. After taking several depositions, plaintiff claims to have discovered new testimony relevant to her most recent motion to compel discovery. Specifically, the plaintiff alleged that: “(1) Defendants both failed to preserve and willfully destroyed evidence, and (2) Defendants continue to intentionally withhold relevant evidence despite repeated demands for production.” The school district had a system for overwriting backup drives. The plaintiff contended that by not stopping the overwriting of the backup drives that it constituted a breach of the defendant’s preservation obligation. The defendant claimed that all information relevant to this case (i.e., emails stored on the school’s employee email system). The duty to preserve arises when litigation is “reasonably foreseeable.” The party that has control over the evidence has an obligation to preserve it. Once evidence is lost, the court then looks to the obligor’s state of mind to determine culpability. Here, the court determined that the defendants did not intentionally lose the data. The burden then shifted to the plaintiff to prove that the lost data was relevant.[1] In the instant case, the court did not find bad faith; thus, it was up to the plaintiff to then prove the relevance of the lost data. Ultimately, the court granted in part and denied in part the plaintiff’s motion. The court found that the plaintiff did not meet her burden of showing that the lost documents were relevant. However, the actions of the defendants that lead to losing materials placed the plaintiff in a position to have to file this motion. Thus, sanctions were awarded in the amount of $1,500.00. The moral of the story: When litigation is pending, or likely to begin, preserve or pay the price. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick in 2012 with a B.A. in Philosophy and Political Science.   Want to read more articles like this?  Sign up for our post notification newsletter, here. [1] When the breaching party acts in bad faith, relevance is assumed.

Does Forwarding Emails To An Opposing Party Qualify As A Sufficient Method of Transfer for Discovery Purposes?

The employee in this case was not an inexperienced layperson, but rather a seasoned and accomplished trial attorney. Yet even with her wealth of knowledge regarding discovery, she was nearly cited for contempt of court as a result of her unfamiliarity with electronic discovery obligations. When obligated to turn over emails to your opposing party during discovery, it is not enough to simply forward the email. Courts require the emails to be in their native form, which means containing the crucial metadata contained within the original email. In Sexton v. Lecavalier, the plaintiff, Byron Sexton, subpoenaed all documents in the defendant’s possession regarding several business entities. The subpoena provided that if these documents were in electronic form, the copies produced must be in their “native” format. In response to the subpoena, the defense attorney produced numerous documents including eleven emails that had been forwarded to her from her client’s Gmail account. The defense attorney claimed that she could not access the emails in their original format and even had an IT expert testify that the emails could not be accessed in their native format because the infrastructure for the email is controlled by Google, who does not allow its users to copy emails in native format. The issue in this case is that the emails were located in the “cloud,” and thus stored with a third party. However, even though a third party held the emails, the plaintiff argues that there are two ways to preserve the crucial metadata. (1) Emails can be downloaded to an email client such as Microsoft Outlook and then saved onto a computer in the format used by the client; and (2) Gmail emails that have been displayed in their “original” format by clicking “show original” and then saved as a PDF. The court held that even though the plaintiff currently lacked access to the files in their native format, this fact does not absolve counsel of her discovery obligations. A growing number of attorneys and courts are realizing the evidentiary value to metadata and as this trend continues, it is becoming crucial for parties to preserve all relevant electronic data. There is currently electronic discovery software in existence, which makes preservation of data a whole lot easier (http://www.ediscovery.com/solutions/collect/ is merely one example of such software). The presiding judge went on to scold both parties for even bringing this discovery disagreement in front of the court. The judge stated that the parties should have resolved this matter outside of court and that the defendant could have provided the emails in a correct format with minimal cost. However, the judge believed that the defense attorney had a good faith belief that the emails could not be provided in their native format and refused to hold her in contempt. It seems that ignorance was the defense attorney’s saving grace. Any practitioners reading this will not have the luxury of such a defense. In order to avoid charges of contempt being levied against you in the future, it would be wise to invest in electronic discovery software. At the very least, you should download Microsoft Outlook and save all of your emails in a format that preserves metadata such as .eml or .msg. As less paper copies of documents are being utilized, and as electronic storage is becoming more prevalent, native documents are going to become an issue increasingly seen by courts. Additionally, resolve any such discovery issues with your opponent. No judge wants his or her time wasted with similar motions compelling discovery. Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently, Daniel is serving as a legal intern in the Juvenile Justice Clinic. After graduation Daniel will clerk for a trial judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here

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    The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.

    Robert Ambrogi

    Legal Tech Blogger and creator of LawSites




    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg


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