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Can you be Compensated for Converting e-Discovery Files?

In Bagwe v. Sedgwick Claims Management Services, Inc., the Indian-born Plaintiff sued her former employer under Title VII of the Civil Rights Act, alleging that she had been fired because of her national origin and race.  The United States District Court for the Northern District of Illinois granted the Defendant’s motion for summary judgment and, afterwards, the Defendant filed a Bill of Costs.  The Defendant sought reimbursement for several costs, the most expensive being costs related to e-discovery in the case.  The Defendant made alternative arguments for three different monetary figures that it sought to receive.

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If You Are a Big Dog in a Company Should Make Sure Your Email’s Are Preserved When Put on Notice? Yes, Unless You Want To Be Found Grossly Negligent

In AJ Holdings Grp., LLC v. IP Holdings, LLC, a licensee's failure to ensure that “key players” preserved their e-mails on various accounts, coupled with his failure to implement any uniform or centralized plan to preserve data or even the various devices, demonstrated gross negligence with regard to the deletion of the e-mails. Furthermore, the inference of gross negligence gave rise to the rebuttable presumption that the spoliated documents were relevant to the breach of contract claim at issue. 

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When Are Tweets Admissible As Evidence?

When people warn you about social media posts and their effects on your future, it’s best not to ignore them. For example, tweets exclaiming “GlenPark or get shot!!!” will not aid in the defense or appeal of a guilty verdict in a murder trial. The defendant in Wilson v. State of Indiana learned this e-Lesson the hard way.

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Can Employers Use Social Media Activity to Prove Laziness in the Workplace?

Can an employer on the hook for unpaid overtime request every social media post made by an employee during a three-year period in order to show that the employee was working on her electronic image instead of selling country club memberships? In Artt v. Orange Lake Country Club Realty, Inc., No. 6:14-CV-956-ORL-40, 2015 WL 4911086 (M.D. Fla. Aug. 17, 2015), the United States District Court in the Middle District of Florida held that a request for all of the plaintiff’s social media was over broad, unduly burdensome, and unreasonable. The discovery requests at issue were “(1) All online profiles, postings, messages (including, without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries), photographs, videos, and online communications that you posted on any date between June 19, 2011 and your last day of employment with Orange Lake [and] (2) Any and all information contained in your Facebook, MySpace, Instagram, Linkedln or other social networking account that you posted at any time between 7:00 am and 7:00 pm on any date between June 19, 2011 and your last day of employment with Orange Lake.”

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Who’s Using Your E-mail Address?

What are the requirements for authentication of electronic communications?  Is past-use of an email address enough to authenticate an electronic communication? Or will a court require more? These are a few of the questions answered by the Eastern District of North Carolina in U.S. v. Shah. U.S. v. Shah is a federal criminal prosecution of a former Information Technology Manager at Smart Online, Inc.  The government alleges that, after the defendant stopped working for Smart Online, Inc., he intentionally accessed his former company’s computer network and caused significant damage. During the pretrial proceedings, a dispute arose as to the admissibility of certain evidence.

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Courts May Award Monetary Sanctions Prior to Trial For Spoliation That Occurred Before the Commencement of Litigation

In this breach of contract lawsuit, the plaintiffs alleged that the defendant refused to pay a debt of approximately $380,000 and failed to supply groceries to the plaintiffs’ market. The market was forced to closed down and the plaintiffs disposed of every paper record they possessed for the market, including general ledgers, invoices, sales reports, cancelled checks, company bills, time clock reports, trial balances, balance sheets, and income statements. The plaintiffs also threw out the only computer the market used and they did not retain any of the information contained on that computer. After the commencement of litigation, the defendant filed a motion for sanctions based on spoliation of evidence related to the financial records destroyed by the plaintiffs. The court determined that an adverse inference sanction was warranted based on the plaintiffs’ intentional and bad faith destruction of evidence, and that it would entertain arguments relating to monetary sanctions after the defendant specifically delineated the time and money it spent addressing the discovery and spoliation issues.

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When Can A Party Access Private Facebook Posts From A Previously Deleted Account?

This action arose after a truck driver’s alleged negligence resulted in a fatal motorcycle accident. Plaintiff, as widow and “tutrix” of the deceased’s minor child, sought the truck-driver Defendant’s social media information through discovery and limited her request to four months following the date of the accident. 

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Just How Broad are a Court’s Discovery Powers?

The court in this motion to compel request did not focus on the facts of this particular case but rather focused on the four individual discovery requests at issue.  This case is about a class action lawsuit against the popular traveling company, Expedia, regarding its baggage fee disclosures.  Plaintiffs, a class of disgruntled customers, provided Defendant with the following four discovery requests: “Policies or Procedures Concerning Your disclosure of baggage fees.” “Copies of all Expedia customer complaints, comments, or criticisms concerning Expedia's baggage fee disclosures.” “Documents showing any errors in baggage fee disclosures that Expedia has identified.” “Identify all other airline baggage fee disclosures that you have determined incorrectly stated the amount of the baggage fee or that Expedia had “no information” for such fee when it in fact did.”—This last request was within Plaintiff’s second set of interrogatories.

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Want to Delete Those Important E-mails? Appeal to the Notion of Cleaning Out Junk.

Three requirements must be met to receive a mandatory adverse-inference instruction for spoliation: 1) the targeted litigant destroyed evidence at a time when he had a duty to preserve said evidence, 2) the targeted litigant acted with intent or gross negligence, and 3) the destroyed evidence was relevant to the movant’s claims. The finding of relevance turns on whether a reasonable trier of fact could infer that the destroyed or unavailable evidence would have been of the nature alleged by the party affected by its destruction. If the three requirements are met, the trier of fact may receive a mandatory adverse-inference instruction, meaning they must infer that the evidence was unfavorable to the discovered party. Courts are often reluctant to grant a dispositive motion based solely on spoliation unless the discovered party acted with bad faith and willfulness, and there is no other effective remedy.

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Watch Out, Facebook Posts and Texts Can Be Discoverable Material!

In this case, the Plaintiff Ms. Veronica Painter is suing her employer, Defendant Aaron Atwood, D.D.S. Painter claimed that while she was at work, the dentist climbed on top of her with his pants down and held her down. Painter suffered extreme emotional distress as a result. The defendant argues that he merely tickled her and that they had a consensual sexual relationship. The discovery issue in this case arises because the defendants asserts that the plaintiff and her two main witnesses intentionally destroyed text messages and Facebook posts that contradict the plaintiff's claims and deposition testimony. Specifically, the defendants allege that while the plaintiff was employed at Urgent Dental, she posted Facebook comments and pictures regarding Urgent Dental and the Atwood’s, including comments about how much she enjoyed her job, how Urgent Dental was a great place to work, and how Dr. Atwood was a great boss and she enjoyed working with him. The defendants assert that they know these posts existed because Dr. Atwood's wife, Kelly Atwood, was friends with the plaintiff on Facebook at the time.

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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

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    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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