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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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Not a Party To the Case? You May Still Have to Preserve.

Deciding what should be preserved and who should preserve it can be difficult when litigation first begins.  However, do not be fooled.  A party can feel the wrath of the Courts if an interested non-party fails to preserve information leading up to trial. In the case of Pettit v. Smith, the court found that a state agency had a duty to preserve evidence even though the agency was not a party to the case.  This case involved a claim of excessive force by an inmate against the alleged attacking officer, supervising officers, and the state of Arizona.  However, it did not include the agency that oversaw the state prison, which is referred to as ADC.  The plaintiff claimed that the defendants and ADC should have taken measures to preserve evidence once they had notice of the litigation.  On the other hand, the defendants claimed that ADC had control over the missing evidence, and the defendants should not be held responsible for the disappearance of evidence they did not control.

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Expert Reports: When Must You Disclose?

When Robocast saw the new UI (user interface) for the Microsoft Xbox 360 “Video” and “Home” channels, Windows 8 Xbox Music Box software, Bing.com, MSNBC.com, and MSN.com, all which utilized a video playlist or a changing tile function, they thought “hey, we have the patent on that UI.” While there are many nuances contained within this case as to the characteristics of each company’s UI, the important point to take away from this is that Robocast saw something in the Microsoft UI that they believed fell under a patent they had filed in 2006. Basically, Robocast saw that the new Microsoft UI operated in the same form and function as that which Robocast had previously patented. Therefore, Robocast brought suit for patent infringement against Microsoft. This case is fraught with technical jargon and in depth explanations of the video playlist and changing tile functions employed by each company’s UI. However, this is an electronic discovery blog so I will give you what you came for. The electronic discovery issue presented itself in this case in the form of an expert report. Robocast had retained Professor James T. Berger to gather information and prepare reports regarding relevant information so that he would be able to form an opinion and testify as to the amount of damages owed to Robocast by Microsoft.

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Court Punishes Dishonest Defendant with Sanctions, Default Judgment, and Dismissal

In the mood for a judicial tongue-lashing?  All you have to do is disobey a court order, destroy evidence and lie under oath.  By means of factual background, Plaintiff Pacific Packaging is a distributor of packaging products.  Defendants James Barenboim, Andrew Slater, Steven Slater, and David Guild were salesmen at Pacific Packaging until they each resigned on October 15, 2009.  After leaving Pacific Packaging, the defendants formed Packaging Partners and began operating the very next day, October 16, 2009.  Sandra Zeraschi was a sales correspondent at Pacific Packaging until she resigned and went to work with Defendants at Packaging Partners the day they began operating.  On November 4, 2009, Pacific Packaging filed a complaint and sought an order for expedited discovery and for the preservation of evidence, sensing something fishy about their new competitor.  Judge Inge allowed the plaintiff’s motion for expedited discovery and ordered the production of several documents, certain depositions, preservation of relevant ESI, and within five days, the provision of any and all computers, laptops, removable storage and other devices used in connection with the Defendant’s businesses to plaintiff’s counsel and experts for examination and copying. 

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