Authored By: Amanda Munsie

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

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

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

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

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

Authored By: 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: 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: e-Discoverygirl

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

Employee/Employer Implicated: Bank Manager, Entire Company

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

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

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

Authored By: S.A.A.

Citation: Patel v. Havanna Bar, Restaurant, and Catering, 2011 WL 6029983 (E.D.Pa. Dec. 5, 2011)

Employee/Employer Implicated: Counsel, Client, Judge

e-Lesson Learned: The Court has broad discretion in determining the type of sanction that is appropriate in cases of spoliation, including the possibility of an adverse inference that non-production of evidence was due to a fear of harm that the evidence could cause, thus counsel should be especially cautious in preserving materials necessary for litigation.

Tweet This: Failure to Preserve Footage and Non-Disclosure of Facebook Information May Lead to Adverse Inferences for Both Parties

The District Court judge ruled that an adverse inference was warranted for allegations of discovery abuse pertaining to messages sent on Facebook.  In Patel v. Havana Bar, Judge Goldberg ordered both Plaintiff Patel and Defendant Havana Bar to incur sanctions for spoliation for the former’s failure to produce statements given in response to a Facebook message about the Plaintiff’s case and for the latter’s failure to preserve video footage of the incident in question.

Authored By: Kathy Trawinski

Citation: United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010)

Employee/Employer Implicated: Government Official, Document Custodian, In-House Counsel, Outside Counsel, Owner & Executive, Upper Management

e-Lesson Learned: A governmental party conducting a criminal investigation must issue a litigation hold at the onset of the investigation in order to instruct its personnel to preserve electronic data, like text messages and emails. Such a government party will not be excused from failing to issue a litigation hold to its agents or officers. The onset of an investigation specifically aimed at prosecution constitutes reasonable anticipation of litigation.

Tweet This: Court orders sanctions against US gov’t for failing to preserve text messages from FBI investigation.

In United States v. Suarez, the United States District Court for the District of New Jersey held that the government violated its duty to preserve relevant data during an ongoing investigation aimed at prosecution of certain individuals.

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

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

Authored By: Suzanne Janusz

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

Employee/Employer Implicated: Owner/Executive, Outside Counsel

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

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

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

Authored By: Lauren Winchester

Citation: Paris Business Products, Inc. v. Genisis Technologies, LLC, 2007 WL 3125184 (D.N.J. 2007).

Employee/Employer Implicated: Owner/Executive

e-Lesson Learned: Even in an unopposed motion for spoliation sanctions, a NJ district court judge may impose the lesser sanction of a spoliation inference without more direct evidence of defendants’ fault.

Tweet This: NJ District Court Imposes Spoliation Inference in Fraud and Breach of Contract Case.

A N.J. District Court Judge ordered that a spoliation inference being given in response to a motion by plaintiff that the individual defendants were erasing information from the company’s computers.

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.