Welcome to the new eLessons Learned

eDiscovery Written by Law Students

eDiscovery Written by Law Students

eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.

Law + Technology + Human Error

Law + Technology + Human Error

Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.

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New to the eDiscovery world?

Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There

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Independent Contractors Beware, You’re Not Protected

Richard Fraser was an independent contractor working for Nationwide Mutual Insurance Company when he was fired in 1998. Although Fraser argued that he was fired for reporting illegal policies that Nationwide had implemented, Nationwide stated he was fired because he was disloyal to the company. Nationwide found that plaintiff had drafted (but not sent) two letters to two Nationwide competitors, Erie Insurance Company and Zurich American Insurance, expressing Contractors Association members' dissatisfaction with Nationwide and seeking to determine whether Erie and Zurich would be interested in acquiring the policyholders of the agents in the Contractors Association. After discovering the letters, Nationwide also searched its mail file server and found e-mails revealing company trade secrets. Fraser filed a wrongful termination suit against Nationwide, arguing that Nationwide’s accessing Fraser’s e-mail account without permission violated the Electronic Communication Privacy Act and a parallel Pennsylvania statute. The trial court granted Nationwide’s motion for summary judgment and Fraser appealed. The Third Circuit Court of Appeals affirmed the trial court’s ruling that Nationwide had access to the independent contractor’s emails. Nationwide was found to not have violated the ECPA because Nationwide had provided the independent contractor with the e-mail account, the e-mail was hosted on Nationwide’s servers, and the e-mails were acquired after transmission of the e-mails. Therefore, the court held that the e-mails were not intercepted by Nationwide. Title 1 of the ECPA prohibits the interception of e-mails, but Nationwide argued that since the e-mails were reviewed after the transmission of the e-mail, that no interception had occurred. The court agreed and found that for one to intercept e-mail, he must occur contemporaneously, at the time of the transmission. Therefore, as long as the seizure of e-mail occurs after the e-mail is transmitted, a company does not need permission to access the independent contractor’s e-mails. Salim received his B.A. in Applied Communications, with a minor in Legal Studies, from Monmouth University. He received his J.D. from Seton Hall University School of Law in 2014. Salim’s past experiences include interning for a personal injury law firm prior to attending law school, as well as judicial internships in the Civil and Family Divisions.

To Shred or Not To Shred

“Follow the document policy!” Those were the words repeated many a time by Arthur Anderson to Enron’s employees during the pending SEC investigation. Those simple words led to a jury’s finding Anderson guilty of witness tampering through the act of persuading his employees to destroy relevant documents. The jury found Anderson guilty of violating 18 U.S.C. §§ 1512(b)(2)(A) and (B), which makes it a crime to “knowingly us[e] intimidation or physical force, threate[n], or corruptly persuad[e] another person . . . with intent to . . . cause . . . ” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” The Fifth Circuit Court of Appeals upheld this decision. However, the Supreme Court reversed this decision determining that the jury instructions were improper. The Court focused on “what it means to ‘knowingly . . . corruptly persuad[e]’ another person ‘with intent to ... cause’ that person to ‘withhold’ documents from, or ‘alter’ documents for use in, an ‘official proceeding.’” The Court held that this language required a proof of consciousness of wrongdoing. The Court additionally found that the jury instructions provided by the district court did not adequately outline the requirement for the consciousness of wrongdoing. Besides not including the proper intent, the district court also misapplied the “corruptly” definition by leaving out the word “dishonestly” and inputting “impede” in place of “subvert or undermine.” “These changes were significant. No longer was any type of “dishonest[y]” necessary to a finding of guilt, and it was enough for petitioner to have simply “impede[d] the Government's fact-finding ability.” In addition, the Court noted that jury instructions did not require any finding of a nexus between the “‘persua[sion]’ to destroy documents and any particular proceeding.” Even though it is illegal to directly persuade someone to destroy documents in the face of a pending litigation, the Court wanted to emphasize that there is a requirement of knowledge about both a pending proceeding and the materiality of the documents to be found guilty of violating the witness tampering statute. Overall, because of the inaccurate jury instructions, the Court here reversed the decision so another jury could hear the evidence along with proper instructions in making their decision. Though this decision seems to make some room to get out of the witness tampering statute, it is always best to have a proper document retention policy and to not persuade any form of destruction.

Defendant’s “Hands-Off” Approach Insufficient; Sanctions Ordered

In this case, Peerless Industries, Inc.  sued defendants Crimson AV, LLC claiming patent infringement and design patent infringement arising out of defendant’s manufacture and sale of certain TV mounts. While not a defending party, Sycamore Manufacturing Co., Ltd. (“Sycamore”) is plaintiff's former supplier of these TV mounts and played a vital role in the alleged infringement. Sycamore is located in China, while Peerless and Crimson are both located in the United States. Plaintiffs filed two motions: (1) a motion to compel the deposition of the Sycamore’s president, Tony Jin, and (2) a renewed motion for sanctions, both of which were granted. It was also determined in a previous case that Jin exercised managerial control over both Sycamore and Crimson. Therefore, plaintiff satisfied that Mr. Jin is a managing agent of Crimson. The court stated, “Plaintiff must simply show ‘that there is at least a close question as to whether the witness is a managing agent.’ We already found this to be the case. Furthermore, Mr. Jin clearly satisfies the ‘paramount test,’ which is whether the individual identifies with the corporation's interests as opposed to an adversary's.” The court further ordered that without any showing of hardship, Jin’s deposition would have to take place in the United States and not in China. As for the plaintiff’s renewed motion for sanctions, this motion marked the third time the plaintiff filed a motion regarding the same set of documents. The plaintiff argued that at the deposition of Crimson’s managing director, “it became clear that defendant did not conduct a reasonable investigation regarding Sycamore’s document production or Sycamore’s document retention for purposes of this litigation.” The plaintiff then filed a renewed motion for sanctions. The defendant and Sycamore asserted that certain documents in Sycamore’s possession had been produced. The plaintiff noted, that defendants did not represent that all requested documents were produced or that they were searched for but no longer existed. The plaintiff argued that the defendant wanted to rely on the same declarations as opposed to issuing more specific responses. The court stated that since it had determined Jin was principal of both Crimson and Sycamore and that he exercised a considerable amount of control over both corporations, that he was able to obtain all relevant documents from Sycamore. However, the court found that defendant took a “back seat” approach and instead used a third-party vendor to collect the documents. Finding that neither Crimson nor Jin had apart in the process of obtaining the requested discovery, the court granted the plaintiff’s motion for sanctions. The court held that this “hands-off’ approach is insufficient. “Defendants cannot place the burden of compliance on an outside vendor and have no knowledge, or claim no control, over the process. Finally, the court held that defendants must show that they in fact searched for the requested documents and, if those documents no longer exist or cannot be located, they must specifically verify that it is they who cannot produce. Salim received his B.A. in Applied Communications, with a minor in Legal Studies, from Monmouth University. He received his J.D. from Seton Hall University School of Law in 2014. Salim’s past experiences include interning for a personal injury law firm prior to attending law school, as well as judicial internships in the Civil and Family Divisions. Currently, Salim is taking part in the Immigrants’ Rights/International Human Rights Clinic at Seton Hall Law.

New Age Technology: Brazilian and U.S. Courts “Scraping” the Surface of Legal Boundaries of Internet Use

This Article was originally published with Bloomberg Law Reports on November 9, 2011. The Internet has afforded anyone, anywhere, a wealth of information at one's fingertips. Within the current and ever­expanding age of technology, Brazilian- and U.S.-based courts continue to draw legal boundaries within a seemingly boundless cyberspace. The boundlessness of the Internet, and its related technologies, transcends geographical limits and poses worldwide issues of regulation. One such technology, which has caught the attention of businesses and resulted in significant legal battles, is "scraping" - a computer software technique that extracts publicly available information from websites. While in and of itself, "scraping" may not be unlawful, courts in Brazil and the U.S. have begun to carve out permissible and impermissible uses of this technology. Brazilian Scraping Lawsuit A recent court opinion of first impression in Sao Paulo, Brazil, gives newfound meaning to ownership rights of information available on the Internet. The Brazilian court's opinion in Curriculum Tecnologia Ltda. v. Catho Online S/C Ltda., et al, examines claims of unfair competition and violation of copyright rules, as applicable to the Internet. The plaintiff, Curriculum Tecnologia Ltda. ("Curriculum"), and defendant, Catho Online S/C Ltda. ("Catho"), are employment recruitment companies, operating solely through the Internet. Thousands of individuals seeking employment use the services of these companies by posting their resumes on the respective websites. In turn, employers seeking to hire review thousands of potential candidates to fill their open positions. In fact, Curriculum is the largest employment website in Brazil, providing a meeting place for over 6 million registered applicants and 100 thousand user companies. These services allow for a faster and easier connection to the open job market. In February 2002, developers at Curriculum noticed an unusual increase in activity on their company's website. While, generally, Curriculum's customers search approximately 500 resumes per day on its website, developers became suspicious when one particular user registered over 63,000 searches in one day. Upon further investigation, Curriculum technicians blocked the particular account and tracked its origin back to a computer at Catho, the defendant competitor. As a result of its investigation and findings, Curriculum filed suit against Catho alleging various business-related claims. As the lawsuit proceeded in the normal course, fact gathering efforts revealed flagrant and deceptive practices by Catho to illegally, in violation of Brazilian law, acquire information from Curriculum's website. In short, Catho developed a program that enabled it to copy ell mass Curriculum's website information database through which it could access resumes from Curriculum's website. Once Catho gained access to the resume information, it used it for its own commercial purposes. The purpose behind Catho's efforts was to increase its own potential employee base in order to offer a wider range to online employment recruiters. Catho acquired hundreds of thousands of resumes from its competitors through the use of these and related methods. Indeed, Curriculum was not the only competitor to bring suit against Catho for these practices, as several other victims of this Internet hacking scheme brought separate actions against Catho. To appreciate the breach of security and the value of the acquired information, one must understand the function of the employment recruitment market in Brazil within which these parties operate. Both parties operate primarily as online employment search engines. Individuals who seek employment and employers who seek skilled individuals, use the services of these recruitment companies by paying fees which permit the posting of resumes and job advertisements, allowing for searches of both to be performed. These web-based services offer various levels of fee-based access to these postings and search capabilities, which in turn generate revenue for these companies. Curriculum's website provides its users with instructions and several menus that allow them to browse its webpage efficiently and effectively. Curriculum does not provide every user with access to its resume bank. Instead, the website uses filters that permit only certain clientele with particular fee-based account settings to access this information. Catho used hacking programs to breach these security devices, allowing unauthorized access to resumes on Curriculum's website, spurring the lawsuit. Specifically, the programs developed by Catho allowed it to take advantage of security flaws in Curriculum's website, and gain access to the entire proprietary database - thereby transferring tens of thousands of resumes in a single clandestine night of debauchery. After plaintiff filed suit, the parties set forth arguments before the Brazilian court in support of their respective positions. Curriculum argued it had a property ownership interest in the data, and therefore Catho engaged in unfair competition and unauthorized copying of Curriculum's information. Catho argued that the information was public, access to the website was open and unrestricted, and therefore the information was not afforded legal protection. In sustaining a lower court's previous finding of damages.judge Luiz Mario Galbetti of 33 Civil Court of Sao Paulo found that Catho engaged in unfair competition by breaching Curriculum's internal computer systems and illegally acquiring thousands of resumes posted therein. The court held that the transmission and expansion of Catho's own database through this illegal acquisition served to increase its market visibility with direct effects on the profits obtained by Catho. Relying on notions of unfair enrichment, abuse of rights, and unpredictability, the court awarded damages in the amount of R$21,828,250.00 (in Brazilian Real). In calculating damages, the court considered the amount charged by Catho per month for posting a resume on its website, R$50.00, multiplied by the 436,595 resumes it illegally acquired. With interest and additional penalties this R$21,828,250.00 resulted in an award of R$63 million in damages, or approximately $42 Million USD. U.S. Scraping Lawsuits Similarly, U.S.-based courts have addressed the legal boundaries of extracting information from public websites. In EF Cultural Travel v. Zefer Corp., 318 F.3d 58 (1st Cir.2003), the U.S. Court of Appeals for the First Circuit issued a preliminary injunction pursuant to the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. 1030, to prohibit the use of a “scraper” software program that defendants used to collect pricing information from the plaintiff/competitor’s website. Zefer Corp. (“Zefer”) sought review of the injunction, implemented in a prior hearing with co-defendant Explorica, Inc. (“Explorica”). See EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001). EF and Explorica are competitors in the student travel business, operating websites that permit their respective visitors to explore various vacation packages. To gain a competitive edge, Explorica hired Zefer to build a program that would allow Explorica to “scrape” the prices from EF’s website and download them into an Excel spreadsheet. After accessing EF’s vacation package pricing, Explorica tailored its own costs, purposefully undercutting EF on an average of 5%. EF stumbled upon the “scraping” scheme as a result of discovery in an unrelated, state court lawsuit involving Explorica. As a result, EF filed suit in federal court, seeking an injunction on the grounds that the “scraping” violated both federal copyright laws and various provisions of the CFAA. The underlying issue in the case was whether the use of the scraper program exceeded “authorized access,” in violation of federal law. The relevant CFAA provision examined by the court provides: Whoever. . . knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such useisnotmorethan$5,000inany1-yearperiod. . .shall be punished as provided in subsection (c) of this section. While the CFAA defines “exceeds authorized access” as “to access a computer without authorization and to use such access to obtain or alter information in the computer that the accesseer is not entitled so to obtain or alter,” the court in EF Cultural Travel provided analysis of the term “authorization.” The trial court held that authorization could be determined both explicitly, for example through a direct statement restricting access, or implicitly. In defining the implicit prong, the trial court relied upon a “reasonable expectations” test. Even though the appeals court agreed that authorization can be both explicit and implicit, it rejected application of the reasonable expectations test used by the trial court. Instead, the appeals court determined that “public website provider[s] can easily spell out explicitly what is forbidden and consonantly, that nothing justifies putting users at the mercy of a highly imprecise, litigation-spawning standard like ‘reasonable expectations.’” As a result, the appeals court determined that a clear manifestation of the company’s intent that no information be collected from its website was necessary in order to show “lack of authorization,” such as an explicit statement on the webpage restricting access. Or, to put it more bluntly, “[i]f EF wants to ban scrapers, let it say so on the webpage or a link clearly marked as containing restrictions.” Nonetheless, this federal appeals court decision did not eliminate the concept of implicit authorization, as it may suffice in other circumstances. However, the decision highlighted that a plaintiff must demonstrate unambiguously that authorization was prohibited. The EF Cultural Travel decision promulgates the theory that the right to control access implicates a right to prevent or obtain legal remedies for any unauthorized access. As demonstrated in EF Cultural Travel, authorization may be established both implicitly and explicitly. Another method of disclosing a lack of authorization may be through the creation of technological barriers, such as encryption of particular information. Under this regime, after the initial encounter, a third party must either obtain permission or take unusual steps to circumvent the technological barrier. Lastly, database owners may also establish use authorization conditions through contractual terms. Whatever the means of establishing authorization, or the lack thereof, it is apparent that a reasonable effort to protect is a precondition to maintaining this legal right.[1] It is recognized, however, that the mere posting of information on a public domain, such as the Internet, does not in and of itself extinguish a protectable right to that information. This presumption is also echoed in case law analyzing the misappropriation of trade secrets. For example, in Barnett, Inc. v. Shidler, 338 F.3d 1125 (10th Cir. 2003), the court examined whether former employees misappropriated a trade secret by implementing the Infant Swimming Research program (“ISR”), which was designed by plaintiff as a scientific, behavioral approach to pediatric drowning prevention. In finding the ISR program was not a trade secret, the trial court noted “[plaintiff ] allowed its program to become part of the public domain before seeking protection...,” referring to various published books explaining the ISR method. In reversing this finding, the appeals court highlighted the decision in Rivendell Forest Prods., Ltd. v. Georgia-Pacific Corp., 28 F.3d 1042, 1045 (10th Cir.1994) in which the court found that “a trade secret can exist in combination of characteristics, each of which, considered separately, is in the public domain, but, taken together, may yield a competitive advantage that results in a protectable trade secret,” solidifying the argument that information may be a trade secret notwithstanding the fact that some of its components are well known. See also Syncsort v. Innovative Routines, No. 04-CV-03623, 2011 BL 213594 (D.N.J. Aug. 18, 2011) (federal district court of New Jersey examining the existence of a trade secret in light of its brief publishing on the internet). While case law involving scraping requires some form of notification as to non-authorization, this line of reasoning quashes any argument that information posted on the Internet should not enjoy legal protection simply because of its public nature. A court must determine the underlying intent of the scraper because the legality of extracting data from a website often centers on the underlying intent in copying.[2] The copying of information for any purpose deemed a “fair use” may therefore not be actionable. As evidenced by both EF Cultural Travel and Curriculum, this key element is what often implicates legal remedies. Lessons Learned Easy access to information afforded by the Internet has created a global culture that often accepts the free use (and abuse) of information. This often results in blurred lines between public and private property, especially for those who conduct business through the Internet. Therefore, unless a database is composed of content independently entitled to protection, for example through copyright or trade secret law, database owners must rely upon a patchwork of available legal remedies. Database owners may seek protection under unfair trade statutes or under common law theories such as misappropriation. Contractual restrictions also offer protection, but such a remedy requires privity of contract. Moreover, while a claim for trespass may also be a feasible option, most courts require a showing of actual injury. Lastly, and certainly not exclusively, protection under the CFAA may be warranted. While each option has its own nuances, courts are setting down the foundation of protection in response to the legalities of the Internet age. Therefore, while the potential remedies available to database owners under U.S. law tend to be narrow, it is no doubt only the beginning. Regardless of the underlying legal principal asserted against an illegal scraper, liability attaches on a case by case basis depending upon the type of access obtained by the scraper, the amount of information accessed and copied, the degree to which the access adversely affects the Web site owner’s system and the types and manner of prohibitions on such conduct. The significant monetary award issued by the São Paulo court underscores the value that information has to a company and its survival. The decision also serves as a warning to billions of Internet users globally, as the calculation of damages serves not only to punish the wrongdoer but also to deter the illegal activity in and of itself. These decisions evidence a fairly new attempt by courts to address the legal issues posed by the Internet. While the approach is not yet uniform, there are obvious efforts by courts to protect proprietary information on the Internet from uses that are detrimental to the owners of such sites. Fernando M. Pinguelo, a Partner at Norris, McLaughlin & Marcus, P.A. and co-Chair of the Response to Electronic Discovery & Information Group at the firm, is a U.S.-based trial lawyer who devotes his practice to complex business lawsuits with an emphasis on how technology impacts lawsuits. Mr. Pinguelo founded and contributes to the ABA Journal award-winning blog, eLessons Learned – Where Law, Technology, & Human Error Collide (www. eLLblog.com). To learn more about Mr. Pinguelo, visit www. NYLocalLaw.com or email him at info@NYLocalLaw.com. Renato Opice Blum, CEO of Opice Blum Advogados Associados in São Paulo, Brazil, is a Brazil-based attorney and economist, who established one of the first leading technology-based law firms. Mr. Blum is the Coordinator of the MBA course in Information Technology Law at São Paulo State Law School and a distinguished professor at Fundação Getúlio Vargas, among other universities. Mr. Blum is co-author of the book, Internet and Electronic Law. To learn more about Mr. Blum, visit http://www.opiceblum.com.br/ lang-en/01_profissionais_dadosRes.php?ID_CUREQUIPE=138578 or email him at renato@opiceblum.com.br. Kristen M. Welsh is a U.S.-based litigation Associate at Schiffman, Abraham, Kaufman & Ritter, P.C. and focuses her practice on business and employment law matters. Ms. Welsh may be reached at KWelsh@sakr-law.com.  [1]. This rule of thumb is also applied in cases analyzing the misappropriation of trade secrets. See Barnett, Inc. v. Shidler, 338 F.3d 1125 (10th Cir. 2003). [2]. Various fair uses have been identified by the court. See Nautical Solutions Mktg., Inc. v. Boats.com, Copy. L. Rep. (CCH) ¶28, 815 (M.D. Fla. 2004) (holding that “momentary copying of open . . . public Web pages in order to extract yacht listings facts unprotected by copyright law constitutes a fair use.”); Ticketmaster Corp. v. Tickets.com, Inc., No. 09-CV-07654 (C.D. Cal. Mar. 7, 2003) (“Taking the temporary copy of the electronic information [from the Ticketmaster.com website database] for the limited purpose of extracting unprotected public facts leads to the conclusion that the temporary use of the electronic signals was ‘fair use’ and not actionable.”); see also Assessment Technologies, LLC v. WIREdata, Inc., 350 F.3d 640 (7th Cir. 2003).

Does a Litigation Hold Require the Preservation of Employee Text Messages? Big Problems in Little Packages: Lost Cell Phone Leads to Spoliation Sanctions

Big things can often come in small packages, especially in the field of eDiscovery.  In Christou v. Beatport, LLC, the defendants learned that something as small as a text message on a lost cell phone can lead to a bevy of headache-inducing preservation issues, even without proof that the lost texts actually contained relevant information. Originally, the two parties worked together to create Beatport, an online marketplace dedicated to promoting and selling electronic dance music.  When that relationship eventually fell apart, the plaintiff, a prominent nightclub owner, brought suit against Beatport and his former employee who, as a “talent buyer,” was responsible for attracting DJs to perform at the plaintiff’s venues.  The plaintiff claimed that since the falling-out, the former talent broker had been strong-arming DJs against performing at the plaintiff’s nightclubs by threatening to drop them from his now high-profile website. Soon after the case was filed, the plaintiff issued a litigation hold letter to the defendants seeking the preservation of electronically stored information.  Despite the fact that this letter specifically referenced text messages, the defendants made no effort whatsoever to preserve the text messages on the former employee’s cell phone.  Of course the phone was then lost, about a year and a half after the hold should have been instituted. The plaintiff sought spoliation sanctions in the form of an adverse jury instruction.  The defendants attempted to shelter themselves from punishment behind testimony that the former talent broker did not use texts to contact clients and no proof was offered that there was relevant evidence anywhere in the phone.  Thus, the defendants felt the plaintiff’s motion was entirely speculative. Given the disappearance of the phone, the court recognized that there was simply no way to know whether it contained any relevant evidence.  There was also no evidence that the defense had done their due diligence by reviewing the text messages to determine whether any were responsive to the plaintiff’s discovery requests. The court explained that spoliation sanctions are appropriate when “(1) a party has a duty to preserve evidence because it knew, or should have known that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.”  Here, there was no question that the defendants neglected their duties by failing to make any effort whatsoever to preserve the text messages. Because the loss of the phone was an accident, or at the most the result of negligence, an adverse jury instruction was unwarranted because it would be too harsh a punishment.   Instead, the court permitted the plaintiffs to present evidence at trial about the litigation hold and the defendant’s failure to abide by it.  Despite finding no foul play by the defendants, sanctions were necessary because “[a] commercial party represented by experienced and highly sophisticated counsel cannot disregard the duty to preserve potentially relevant documents when a case like this is filed.” The previous sentence best sums up the defendants’ actions.  They completely shirked all responsibility by failing to turn over the requested text messages or securing the phone itself.  Even though the phone was lost accidentally, spoliation sanctions were warranted because of the defendants’ complete disregard of their preservation duties.  The time and money spent belaboring this eDiscovery dispute could have  been completely avoided if the defendants simply preserved all of its electronically stored information, especially those documents specifically mentioned in a litigation hold.  Instead, the defendants suffered what probably turned out to be significant financial consequences fighting the motion and were left to combat incredibly damaging evidence at trial. Jeffrey, a Seton Hall University School of Law graduate (Class of 2014), focused his studies primarily in the area of civil practice but has also completed significant coursework concerning the interplay between technology and the legal profession.  He was a cum laude graduate of the University of Connecticut in 2011, where he received a B.S. in Business Administration with a concentration in Entrepreneurial Management. 

Think Plaintiffs Have All the Leverage? Not If They Spoliate.

Individual plaintiffs often exert settlement leverage against corporate defendants because, irrespective of the merits of the suit, the prospective costs of litigation coerce early settlement.  Therefore, an individual plaintiff often has nothing to lose.  Even if a plaintiff’s suit is meritless, often times the worst case scenario faced is dismissal of the suit.  Additionally, where a case is taken on a contingent fee basis, an individual plaintiff is merely left where they started.  However, Taylor v. Mitre Corp. shows that in some circumstances an individual plaintiff can in fact find himself or herself in a worse position than prior to litigation. In Taylor, the plaintiff of the same name filed suit against his former employer, The Mitre Corporation, alleging violations of the Family Medical Leave Act and Americans with Disabilities Act.  However, it was Taylor that was soon on the defensive.  First, Taylor was accused of spoliating evidence when he smashed a work computer with a sledge hammer.  It is not clear what sanctions resulted from this conduct; however, the court did not remain quiet following Taylor's later response to the Magistrate Judge's ordering Taylor to produce his laptop for inspection.  Upon issuance of the order, Taylor promptly ran specialized programs—Evidence Eliminator and CCleaner—on his computer for the clear purpose of deleting relevant data and information. Upon learning of Taylor's second act of spoliation, the court sanctioned Taylor by dismissing his suit.  A severe sanction, of course, but it is arguable whether dismissal alone serves as an effective deterrent to future spoliation of evidence.  After all, if a plaintiff has extensively spoliated evidence, it is likely that a plaintiff’s case was not meritorious in the first place.  Additionally, dismissing a non-meritorious suit will merely leave the plaintiff where he started and leave the defendant out a bundle of unnecessary litigation costs. Accordingly, the court not only dismissed Taylor's suit but also found him responsible for Mitre's reasonable fees and costs associated with the motion for sanctions—$202,399.66 in total.   The court arrived at this total by applying the lodestar methodology and was not swayed by Taylor's claim of financial hardship.  It is believable that an individual plaintiff will be hard-pressed to pay such costs; however, the court reasoned that reducing an award of fees and costs is appropriate where the full sanction will have a chilling effect on the filing of future, potentially meritorious, claims.  The court found that imposing sanctions for bad-faith spoliation would not have such a chilling effect, and therefore refused to reduce the award in favor of Mitre. So what's the moral of the story?  In many cases a plaintiff will have little to lose and the nuisance value of their suit places them in strong settlement position.  But conduct by the plaintiff in bad-faith can quickly shift this leverage. Adam L. Peterson is a graduate of Seton Hall University School of Law (Class of 2014).  Adam was a member of the Seton Hall Law Review and, prior to law school, Adam was an Environmental Analyst with the New York State Department of Environmental Conservation.  

Who Knew? ERISA Litigation is not the Same as Securities Litigation

In a recent ERISA class action case against Coventry Healthcare, th plaintiffs raise four ERISA violations:  “Count I asserts a claim for failing to prudently and loyally mange the Plan and assets of the Plan; Count II asserts a claim for failing to monitor fiduciaries; Count III asserts a claim for failing to avoid conflicts of interest; and Count IV asserts a claim for co-fiduciary liability.” While Count II was thrown out on an earlier motion, the remaining Counts are still pending. In this dispute, the plaintiffs filed a motion to compel the defendants to comply with discovery requests. The defendants responded, stating that the plaintiffs’ request was overbroad because it requested documents from too large of a time period. In support of this argument, the defendants cited the related securities violation that involved “the same set of operative facts” where a similar motion was struck down by the court. However, the court noted that ERISA litigation has a different scope from securities cases, and the relevant period here is the period of time during which Coventry engaged in imprudent investment:  “[U]nlike the Securities Litigation, in which the focus is primarily on misleading statements, the focus in this ERISA action is also on Defendant’s conduct, as fiduciaries, in offering Company Stock as an investment option when they allegedly knew it was overvalued.” Thus, the court granted the plaintiffs’ Motion to Compel, although they did allow the defendant an opportunity to create a “claw-back” provision to reduce the potential burden. Matthew G. Miller, a Seton Hall University School of Law 2014 graduate, focused his studies in the area of Intellectual Property. Matt holds his degree in Chemistry from the University of Chicago. While in law school, Matt worked as a legal intern at Gearhart Law, LLC.

Movin’ On Over: Shifting Burdens and Costs

The defendants in Conn. Gen. Life Ins. Co. v. Scheib objected to five of the plaintiff’s Requests for Production of Documents (“RFPs”) because they would be unduly burdensome to produce. Thus, the court allowed the defense counsel to come forth with evidence to prove that the production of those documents, which consisted of 219 gigabytes of 19 different e-mail accounts.  The court determined that such production would be unduly burdensome. Counsel for the defendants did indeed file a Supplemental Briefing Regarding Cost of E-Mail Production indicating that it would cost over $121,000 to index, filter, and process the data. In this case the plaintiff’s complete claim totaled $119,515.49. In analyzing the defendants' proof against production, the court used Federal Rule of Civil Procedure 26(b)(1), which states that a court can limit discovery of relevant material if the discovery sought is unreasonably cumulative, obtainable from another source that is more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery outweighs the likely benefit. The party objecting to the discovery request has the burden of proving why the requested discovery should not be permitted. But, if the party meets that burden, the burden then shifts to the original requesting party to show that the information is relevant and necessary for the case. The court also goes through the steps of analysis of determining whether a party meets the burden of proof. The first inquiry is to determine the benefits derived from the documents requested, specifically what relevant information will become available and the value of that information in resolving issues in the case. Then, those benefits should be compared against the cost of the production of the documents. Additionally, the court can deny the discovery request if the court finds there is a likelihood that the benefits of the requested discovery would be outweighed by the burden or expenses imposed by the proposed discovery. The court here also noted that cost shifting is a possibility when the documents are found to be burdensome to one party, but the other party feels they are necessary for the case. So a court could determine that parties either need to share the costs of a discovery request, or that a proposing party must take over costs for the request. The court found the defendants provided enough proof that the five RFPs were unduly burdensome to produce. The costs, tasks, and outside firms that would need to hired all combined convinced the court that it outweighed the benefit that the plaintiff would get out of the documents. Additionally, the court noted the lower stake of the litigation and the already provided documents that hit many of the relevant matters at hand in the case. The court also allowed the plaintiff to fund the retrieval of the information requested in those five RFPs if desired: “If Plaintiff believes that this information is important to its case, then Plaintiff can perform its own cost-benefit analysis and determine whether it wants to fund the discovery.” Overall, Scheib teaches us that once a party gets past the heavy burden of proving that production is burdensome, then all burden and costs could easily shift to that original requesting party.

Comply With Discovery, Or Pay The Price

While the practice of law, by nature, involves two parties facing off, there is no reason to make the job more difficult than it needs to be. The rules that govern court proceedings are in place to encourage cooperation between the parties and ensure that things “run smoothly.” When one party fails to abide by these rules, sanctions may be necessary. In Branhaven, the defendant’s counsel sought to prohibit the plaintiffs from using certain documents that were the product of a large last minute “document dump,” and award the defendants attorney’s fees and costs as a result of said production. The defendants also claimed that they were entitled to fees based on a Federal Rule 26(g) violation, in that plaintiff’s counsel had incorrectly certified by signing a response to defendants document requests on March 21 that such responses were “to the best of [his or her] knowledge, information and belief formed after reasonable inquiry.” Id. at 389. The defendants also claimed that counsel for the plaintiffs did not make reasonable efforts to ensure that the client has provided all the information and documents available that are responsive to the discovery demand. Additionally, for each request, the plaintiffs responded by stating that they would make the documents available at a mutually convenient time. In order to understand the egregious nature of the plaintiff’s conduct, we must look at the timeline of events. On January 31, 2012, requests were served on the plaintiffs, at which point its counsel claimed to have sent these requests to the client. On March 16, 2012, the plaintiff’s counsel claimed that the plaintiff had yet to be provided with responses.  The plaintiff’s counsel told the defendant’s counsel that they would be made available at a mutually agreeable time. The record reflects no action was taken until June. On June 14, 2012, the plaintiff’s counsel stated that the client had yet been provided any documents for production. The plaintiff assembled responsive pleadings based on that documents within the firms possession and sent same to the defendants. This amounted to about 388 pages in total. On July 20, merely days before depositions of the client were to begin, the plaintiff produced 112,106 pages apparently from overlooked e-mail servers and laptops. The plaintiff defend this conduct by stating that their servers were purchased as part of an asset sale and that passwords were not readily available, as the preference was to use in house IT staff prior to outsourcing. The court did not buy any of the plaintiff’s arguments stating that the plaintiff waited about five months prior to seeking the assistance of outside IT support. While a one month delay may have been reasonable, five months was not. Before one initiates suit, one should prepare for discovery as they would be subject to demands. The March 21 certification was made prior to any investigation by counsel that eventually turned up over 100,000 pages of documents. Therefore, the lack of access on the defendants stemming from the plaintiff’s conduct was punishable through attorney’s fees for the time spent converting the documents to a reviewable format as well as the time spent drafting and prosecuting for this motion for sanctions.

How Can You Check if Your Insurance Customer is Faking an Injury? Get Evidence Before Requesting Access to Their Social Media!

A growing trend in insurance disputes is a demand for insurers to have access to the claimant’s social media content.  In January 2013, the District of Montana had to consider whether to compel a woman to produce all of her social media photos.  The court did not grant this request and the decision serves as a good example of what is, or is not, an effective way to request this information. In Keller, one of the plaintiffs claimed she injured her head, neck, and back in an automobile accident when the vehicle she was driving was struck from behind. Her mother also suffered injuries in the accident.  At the time of the accident, they were insured under an automobile liability policy issued by the defendant. The plaintiffs made a claim for uninsured motorist benefits under the policy. The defendant, under Federal Rule 37, moved for an order compelling the plaintiffs to respond to discovery requests for the production of their social network site content.  The defendant’s rationale for the request was the plaintiffs alleged a “host of physical and emotional injuries.”  In respect to the mother, the defendant argued “there is no good reason for her to shield information that might shed light on her or her daughter's injuries.”  This is the language of the request: Request for Production No. 18: Please produce a full printout of all of Plaintiff [driver]’s social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from August 26, 2008 to the present. Request for Production No. 19: Please produce a full printout of all of Plaintiff’s [mother's] social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from August 26, 2008 to the present. As you can imagine, the court felt these requests were overbroad.  It is well settled that social media content is discoverable, but the requestor must make a threshold showing that publicly available information on those sites undermines the plaintiff’s claims.  The defendant did not come forward with any evidence that the content of either of the plaintiffs’ public postings in any way undermined their claims in this case. Absent such a showing, the defendant was not entitled to delve carte blanche into the nonpublic sections of the laintiffs' social networking accounts, let alone all of them. This case should serve as a lesson to other insurance litigants.  You should only request access to social media accounts if you can make a threshold showing that the social media content will be relevant and hold admissible evidence.  Otherwise you will rightly be admonished for undergoing a “fishing expedition” and your requests will be promptly denied.