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.

New to the eDiscovery world?

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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Contribute to eLessons Learned

Interested students may apply for the opportunity to write for e-Lessons Learned by filling out the simple application. Go There

What Happens When Video Evidence Is Changed, But Not Deleted?

In May 2014, Hon. Janet Bond Arterton, U.S.D.J. for the District of Connecticut ruled that sanctions were not appropriate in a case involving the conversion of a security video’s native format.  Plaintiff Robert Crawford brought a motion for spoliation sanctions—including an adverse-inference instruction and monetary sanctions—against the Defendant City of New London for an alleged failure to preserve a hard drive containing video of Crawford’s arrest.  Plaintiff, whose underlying claim involves excessive force issues, suggested that the original format of a security video may have been capable of being enhanced, and as such, Defendants had a duty to preserve that original version, and turn it over for discovery.  Judge Arterton disagreed. In examining whether sanctions were appropriate, the court first set about defining the parameters of spoliation. The court noted “[s]poliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Crawford v. City of New London, 2014 WL 2168430, *2 (D. Conn. May 23, 2014) (quoting West v. Goodyear Tire & Rubber, Co., 167 F.3d 776, 779 (2d Cir. 1999)).  Later, the court analyzed the adverse-inference charge, and articulated “[a] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Id. (quoting Chin v. Port. Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012)). Here, the court noted that Defendants’ duty to preserve stemmed from a hold letter received pursuant to the Freedom of Information Act on June 24—nearly five months after the incident took place, and more than four months after New London’s retention policy allows for transferring of data to portable storage.  As such, while the Defendants certainly had a duty to preserve, there was no specific need for multiple copies of duplicative information.  New London hadn’t breached the preservation duty. But what about “Significant Alteration?”  Spoliation isn’t just about destruction.  Plaintiffs argued that in converting the video evidence from the format present on the hard drive to the portable storage versions on DVD, Defendants sacrificed the integrity of metadata, or of the files themselves such that they could no longer be enhanced for use in trial presentation.  This novel argument suggested that were enhanced versions of the video available, perhaps the jury could see that Crawford’s arrest on February 4, 2010, was enacted using excessive force. The court was not persuaded by this argument.  Testimony from the City of New London’s Chief Information Officer indicated that the conversion to DVD was lossless, in that the new format preserved the video in every material way.  Absent proof to the alternative, the moving party was unable to demonstrate “that the destroyed [or significantly altered] evidence was relevant . . . ” under the standards set forth in Federal Rule of Evidence 401. Defendants were prepared for litigation, and they reasonably preserved all necessary data responsive to discovery request.  Defendants’ retention policy for the original hard drive housing security footage is acceptable, and preserving the data on portable media after formatting the drive is an added precaution going well-beyond the standard of care.  Crawford is fortunate that Judge Arterton didn’t force Plaintiffs to cover the costs of responding to the motion—if this author was on the bench, he might have. Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015.  Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan. Want to read more articles like this?  Sign up for our post notification newsletter, here.

FRCP 26(b) – A “Yes Man” for Motion to Compel Discovery Requests

It is well understood that FRCP 26(b) grants broad discretion over discovery. Courts use a “totality of the circumstances” test to weigh a discovery requests and generally, strong public policy in favor of disclosure shifts the scale in the favor of the plaintiff. In a totality of the circumstances analysis, the court will always balance the value of the information sought, the burden of producing it, and the relevant social interests against any company’s decision to withhold discovery. Courts have often denied claims if they are extremely burdensome to the defendant. However, courts do tend to side with granting a plaintiff access if their request is highly relevant and probative to issue. This does not mean that the court will ALWAYS grant discovery requests but it does mean that if the claim is pertinent to the claim at bar then the request will be approved. There exists a plethora of case jurisprudence in determining whether a claim is relevant to the issue at hand. In Chickadaunce v. Minott, the plaintiffs are a class of disabled individuals totaling 4,800 members. The plaintiffs allege that that the way the defendants administered the Indiana Community Integration and Habilitation Medicaid Waiver Program ("CIH Waiver Program") did not ensure the plaintiffs received benefits to which they were entitled under federal Medicaid Law. The plaintiffs now seek approximately 200 case files of specific individuals and other unknown number of case files from St. Vincent New Hope group home facility, which provides services to class members. The plaintiffs filed a motion to compel the case files requesting that the files are likely to include highly pertinent information concerning members of the class as well as information regarding diagnoses, historical levels of treatment, reasons for reduction in service levels, and incident reports. All of these requests are appropriate due to the ADA and Rehabilitation Act reliance on these factors in its determination of whether patients qualify for its program. This request by the plaintiffs will easily fall under Rule 26, which grants parties wide latitude in conducting discovery, and may use any method of discovery in any sequence, so long as "the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26. The plaintiffs point out in support that these requested case files will strengthen their presentation in other forms of evidence and many courts have been known to accept this logic as validation granting a motion to compel discovery. If you follow the existing court precedent you will find that the court has only denied discovery requests in very extreme examples. Otherwise, the court has allowed the request if the request was relevant to the matter at bar. The court has even granted a discovery request even if the request would require “several hundred hours” to search company records and develop software to extract relevant information. Donnelly v. NCO Financial Systems, 263 F.R.D. 500, 503 (N.D. Ill. 2009), objections overruled, No. 09-C-2264, 2010 WL 308975 (N.D. Ill. Jan. 13, 2010). Here, the plaintiffs requested case documents that were a fraction of the total class (200 out of a total 4800), the expenditure of the State to prepare the database was minimal compared to prior allowances by the court (10 to 15 hours of required work), and extracting the information with specific employees was not unreasonable (vast governmental resources available). Therefore, the court granted the motion to compel discovery. Unfortunately, as much case law as exists on whether a company should comply with a discovery request and what would happen in a motion to compel, each jurisdiction is different. Depending where litigation arises will determine what the specific rules affect your company. It is always important to review your area’s discovery limitations to determine what would be and what not be discoverable. Plaintiffs have the benefit of the law being on their side, however, a court is not always a “Yes Man” and has been known to say “No.” Timothy received his B.A. from Rutgers University in 2011. He began his post-college life working in Trenton, New Jersey, at a lobbying and non-profit management organization before attending law school in the fall of 2012. He will receive his J.D. from Seton Hall University School of Law in 2015. Timothy has had a diverse set of experiences during his time in law school and has found his calling in Tax Law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Is a Request For Discovery Overbroad and of Speculative Relevance?

Overbroad and unwieldy discovery requests will not be tolerated and will be denied by the courts.  A party may not indiscriminately pursue wholesale production of discovery materials, especially when the party fails to provide any justification for the expansive discovery request.  Instead of allowing such overbroad discovery, the courts will limit the request to certain materials or agreed upon search terms. In Capital Ventures Int’l v. J.P. Morgan Mortgage Acquisition Corp., Capital Ventures International (“Capital”), the plaintiff, moved to compel J.P. Morgan Mortgage Acquisition Corp. (“J.P. Morgan”), the defendant, to provide further responses to its requests for production.  Capital sought the testimonial materials from all other investigations and litigations regarding JP Morgan’s residential mortgage-backed securities (“RMBS”) practices, all materials already produced in other RMBS actions or investigations, and several other discovery related requests.  In response, JP Morgan provided less burdensome alternatives to Capital’s requests. The court found that Capital’s indiscriminate requests for the wholesale production of all testimonial materials and already produced materials to be overbroad and not reasonably calculated to lead to relevant information.  The testimonial materials encompassed more than 150 million pages of documents and 153 deposition transcripts, while the materials produced in other RMBS actions and investigations included a massive document production of tens of millions of documents.  Moreover, the court found that Capital did not show a sufficient similarity between this case and all the other cases and failed to justify the expansive discovery.  The court accepted JP Morgan’s offer to produce approximately 50 deposition transcripts and to run agreed-upon search terms to sufficiently capture materials relevant to the issues in this case.  Beyond that, the court denied Capital’s remaining requests for testimonial materials and documents produced. The requesting party should avoid submitting overbroad requests for discovery that are not reasonably calculated to produce documents relevant to the issues in the case.  Several alternative strategies that can be learned from Capital Ventures International are:  (1) utilize programs that run search terms to capture relevant materials; (2) limit requests to certain relevant materials; and (3) provide sufficient justification for discovery requests that are potentially overbroad.           Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University.  He will receive his J.D. from Seton Hall University School of Law in 2015.  After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Is a Preservation Order Against a Resigning Employee Inappropriate As To An Employer-Supplied Computer?

It is common for an employer to supply company-owned laptop computers to its employees for doing their work. It is also not uncommon for such an employee to be involved in litigation with a third party where the company-owned computers used by the employee are subject to potential electronic discovery. Knowledge or expectation of such litigation by the employee gives rise to a duty to preserve. In many situations, the employee ends up resigning from the employment and having to return the company laptop computer to the employer.  In this whole sequence of events, what should the employee do as to the laptop computer in order to satisfy his/her duty to preserve and thus defeat a motion for preservation order by his/her adversarial? The case of Cognate Bioservices v. Smith sheds some light onto this issue. In Cognate Bioservices v. Smith, Cognate sued Smith for violations of the Computer Fraud Abuses Act and misappropriation of products and trade Secret in the Northern Division of the District Court for the District of Maryland. Smith was previously the CEO of Cognate and had access to trade secrets stored on Cognate servers as well as in a laptop computer provided to Smith by Cognate. Smith then resigned and became the head of the US operation of an Israeli competitor of Cognate, MacroCure. Smith, however, did not give the laptop back to Cognate until more than two years after his termination with Cognate. During that time, he had accessed the Cognate server as well as the laptop computer still in his hands, giving rise to the suspicion by Cognate that he had downloaded trade secrets from Cognate.  For his work with MacroCure, Smith bought a second laptop (the Dell laptop) and was reimbursed for the purchase price by MacroCure. Soon after the start of this litigation in the federal court, Smith resigned from MacroCure. Cognate moved the Court to issue a preservation order as to the Dell laptop and Smith objected. This federal action was filed on June 19, 2013. Smith gave Cognate notice that the Dell laptop he used in connection with his employment at MacroCure would be returned after his resignation. Smith then returned the Dell laptop to MacroCure in late July or early August 2013. The motion for preservation order was filed August 15, 2013. After the filing of the motion, Smith contacted the person to whom he returned the Dell laptop, Idan Peer, and requested that he not dispose or delete any of the files on the computer. In addition, Smith’s counsel provided Cognate with Peer’s mailing address.  Cognate argue that the preservation order is still necessary because, by returning the Dell laptop, Smith has demonstrated the urgent need for an order preserving evidence and he also appears to have the practical ability to obtain the return of that evidence. The court disagreed and held that Smith compiled with his duty to preserve material evidence with respect to the Dell laptop. Court-issued preservation order is inappropriate when such duty is met and there is no evidence showing risk of spoliation of evidence. The court is more willing to rely on the duty to preserve to regulate conduct without resorting to preservation orders. This is regardless of whether there is undue burden for Smith to obtain a return of the Dell laptop. Thus, if an employee gets into a similar situation, to avoid a preservation order, make sure that notice about the return of the employer-provided computer is given to the adversarial, that the person receiving the computer is notified as to preserving the data on the computer, and that the information about the custody of the computer is given to the adversarial. Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a fourth-year evening student at Seton Hall University School of Law focusing on Patent Law. 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.

If I Sue My Employer Can They Access My Private Social Media Account?

Everyone has some sort of social media account in this day and age. Even my mom has a Facebook and Instagram account. Therefore, an important question exists: How private is this information and could it ever be used against me in a court of law? The short answer is yes, if a court determines that the information’s probative value outweighs its prejudicial effect. In such an instance, private content stored on your password protected social media account must be turned over to the opposing party as discovery. Therefore, you must be wary of the content contained on your social media account; you never know when it could be used to your detriment. When Christopher Ogden sued his employer under Title VII alleging that the employer subjected him to a hostile work environment, disparate treatment based on reverse gender discrimination, and retaliation, he never imagined that his private social media communications and content would be subject to discovery and used to impeach the validity of his claim. However, his employer did exactly that and filed a motion to compel discovery seeking all pictures Ogden posted or was tagged in on “any social networking website.” Furthermore the defendant employer requested “all status updates, messages, both sent and received, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments and applications . . . .” This motion was likely never expected to prevail because of its breadth and lack of specificity; however, the court did not dismiss it altogether. Ultimately, the court granted the motion for discovery in part and denied it in part. Relying on the holding of Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., the court asserted that the defendant’s motion cast “too wide a net” and therefore requested information that would be in no way discoverable. However, Ogden did not get to keep all of his social media activities secret from the defendant as the court did carve out an area that was fully discoverable by the defense. Ogden was required to turn over all social media content relating to the lawsuit which contained information regarding his workplace conduct and his emotional state of mind before, during, and after he filed the lawsuit along with possible causes for that state of mind. Therefore, while Ogden’s employer did not gain unfettered access to his personal social media accounts, the court nevertheless allowed access to such information as pertaining to the instant suit regarding Ogden’s workplace conduct and emotional state of mind. The lesson here is that you should be ever so careful what you post on your social media sites; you never know when it could come back to haunt you. The fact that you thought it was private and thereby undiscoverable at trial will not help you. User beware. A.S. Mitchell received his B.A. in Political Science from the University of Central Florida (2008). He will receive his J.D. from Seton Hall University School of Law in 2015. Presently, A.S. clerks for the Monmouth Co. Office of the Public Defender.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

Excessive Force, Missing Video Evidence: Were the Cops Trying to Hide Something?

The Philadelphia Police Commissioner and two police officers were accused of spoliation of evidence in an excessive force case. “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence.” Kinsler v. City of Philadelphia, No. CIV.A. 13-6412, 2014 WL 3964925, at *1 (E.D. Pa. Aug. 11, 2014) (internal citations omitted). In this case, there was an incident that led Jeffrey Kinsler to file a lawsuit against the City of Philadelphia for use of excessive force. Subsequently, a witness submitted a 15-to-30-second-long video to the police department of the events that occurred prior to the arrival of the police officers on scene that day. The police department lost the video. Kinsler argues spoliation and asks for a specific jury instruction stating such, as well as sanctions. The court found however, that there was no spoliation. It determined that the video was not relevant to the case because it only showed events that occurred before the officers arrived on scene. Further, a video was in existence that showed the incident at the time the officers were involved. Also, Kinsler never claimed that the accused officers were ever in possession of the lost video. Therefore, there was no spoliation and plaintiff’s motion for sanctions was denied. Moral of the story: If evidence is at all potentially relevant in pending or foreseeable litigation, preserve it, or risk sanctions. 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.

When Do E-Discovery Costs Shift?

It is a known fact that electronic discovery is costly.  For which party, however, is e-discovery costly? Does the cost of e-discovery ever shift to the other party or is it shared amongst the parties? The United States District Court for the Eastern District of Pennsylvania recently considered the cost-sharing question in the case of Cochran v. Caldera Med., Inc., when the defendant’s made a motion requesting to share the burden of costs with the plaintiffs.  The defendant argued that it had limited resources and estimated that it would cost $500,000 to collect and produce the ESI in response to the document requests. The judge ultimately denied the defendant’s request, but why? The court began with the presumption that each party must bear its own discovery costs. The judge first addressed the law under Rule 26(b)(2)(B), where the court has the discretion to grant cost sharing and other relief if the producing party shows “that the information is not reasonably accessible because of undue burden or cost.”  Information is found to be accessible if it is stored a readily usable format. The defendant did not provide any documentation in support of its estimate or identify what portion of this estimate was attributable to retrieving accessible information or reviewing documents for privilege, both of which tasks are typically not subject to cost sharing. Without this evidence, the court held that the defendant failed to show that the ESI was not reasonably accessibly as required to allow cost sharing under Rule 26. The court next considered cost sharing under Rule 26(b)(2)(C)(iii), which permits cost sharing if the court determines that “the burden or expense of the proposed discovery outweighs its likely benefit. The court held that the plaintiff document requests were relevant and material information. Thus, using the proportionality factors from Rule 26, held that the burden on the defendant did not outweigh the importance of the discovery and the seriousness of the injuries alleged by the plaintiffs and the defendant must pay. The moral of the story is that cost shifting between parties can only be considered in limited situations according to the FRCP 26. They are if inaccessible data is being requested for production, or if proportionality supports it. Keep this in mind when making your next motion for cost sharing. Click here for a look at Federal Rule 26.  Amanda is a third year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Hiding Bank Account Records Can Be Criminal—Not Just For the Mob!

During the course of discovery, plaintiff Luellen requested that defendant Hodge  produce bank account records.  Hodge failed to produce the bank account records, claiming that the bank, Capital One (and Charter One), had destroyed these records already. Luellen argues that Hodge was aware that the records were being sought for discovery and deliberately allowed the records to be destroyed. Luellen argues that Hodge had two different ways of being aware that the records were relevant to litigation and thus had a duty to preserve the records. First, Hodge was served with Luellen’s interrogatories, requesting information relating to bank accounts in Hodge’s name. Second, Hodge filed a motion for a protective order requesting that the Court quash a subpoena directed to Charter One. The fact that Hodge sought a protective order regarding the bank indicates knowledge that the bank records were sought for discovery. In addition, Luellen claims that in filings dated February 27, 2012, Hodge made statements indicating his awareness of Luellen's pursuit of information regarding Hodge's personal accounts. The argument for spoliation of the bank records is based on the reasonable assumption that if Hodge had directed Charter One to preserve his records when he was served with the first set of interrogatories, then the relevant records would not have been destroyed in accordance with the bank's record retention policy. In a spoliation motion, the party must show that:   (1) the party charged with destroying the evidence had an obligation to preserve it; (2) the records were destroyed with a “culpable state of mind”; and, (3) the destroyed evidence was relevant to the party's claim or defense. In reference to the first element, the court found that “a common sense understanding of the relationship between an account holder and a financial institution leads to the conclusion that Hodge had sufficient control over the documents to be able to direct their preservation.” Hodge should have directed the bank to preserve the records. In reference to the second factor, that the records were destroyed with a culpable state of mind, the court finds that Hodge’s failure to prevent the bank from destroying the records was negligent but not bad faith. The court finally holds that severe sanctions are not warranted in this case because Luellen has not shown that Hodge's failure to preserve the Charter One account records were done in bad faith or that Luellen had been severely disadvantaged by the destruction of the records. Hodge was directed to reimburse Luellen's costs and expenses in the amount of $18.00. The takeaway message here is that while you are in control of bank records, if you can show that you did not act in bad faith when you failed to prevent the banks from destroying the records, you could avoid a spoliation charge. But beware, it is better to anticipate this and prevent it by telling your bank to keep all your records! Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated cum laude from UCLA and completed graduate work in Biomedical Science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Rule 37: When IT Meets IP

The most important sentence of the court’s opinion in Armstrong Pump, Inc. v. Hartman, contained one word:  “Enough.”  After more than four years since the lawsuit was filed, discovery is far from complete, the case is far from ready for trial and the Court made a point to note “its frustration with the continual and growing animosity between the parties” which has “slowed the progress of the case” and “required repeated judicial intervention.” In February 2005, the parties’ relationship began when defendant Hartman/Optimum entered into a License Agreement with plaintiff Armstrong concerning three patents that defendant owned.  The License Agreement contained several restrictions, including that Armstrong had no rights to “field implementation” of the patented product.  At its essence, the dispute arose when Armstrong allegedly breached the License Agreement by utilizing the “field implementation” when the Agreement explicitly prohibited such use.  Defendant accused Armstrong of exceeding the limited scope of its license rights and therefore breached or threatened to breach the License Agreement. What began as a somewhat typical breach of contract case quickly devolved into a flurry of document production disputes.  Optimum initially served Armstrong with two sets of discovery requests seeking for “all documents” pertaining to the License Agreement, communications between Hartman and Armstrong and the alleged “field implementations.”  Over Armstrong’s protest, Optimum filed a motion to compel, which the court granted.  The court, however, cautioned Armstrong “not to engage in piecemeal production of materials it has located” that are, in fact, responsive.  Because Armstrong never filed a motion for a protective order, Optimum served a second set of discovery requests pertaining to marketing efforts and customers that might provide relevant information regarding the use of “field implementation” technologies.  Again Armstrong protested and again, the court granted a motion to compel. The most recent discovery dispute contains allegations of delays, omissions, and misrepresentations, and “threatens to make this case more about document production than about breach of a contract.  After the second motion to compel, Armstrong made at least nine separate document productions and produced over 34,000 documents before the first deposition was even taken.  In that first deposition, Optimum deposed Thomsen, who was an Armstrong Director, and he revealed to Optimum for the first time that any Armstrong product using the relevant patents went through a five-step development process.  This deposition led Optimum to accuse Armstrong of withholding documents and information related to the development process. Optimum now argues that information recently acquired should have been provided years earlier and that Thomsen and other pertinent employees need to undergo further deposition to reflect the newly acquired information.  Optimum believes that Armstrong is hiding or delaying information about unauthorized sales that violate the License Agreement and that therefore, Armstrong should be sanctioned and ordered to compel further responses. Armstrong counters that it has been sufficiently responding to the discovery requests and accuses Optimum of demanding more information and documentation without reviewing what has already been handed over.  Armstrong also argues that Optimum did not follow Rule 37 of the Federal Rules of Civil Procedure by meeting with Armstrong to discuss its concerns prior to filing the current motion. After taking the time and effort to express its frustration at this exceedingly adversarial case, the court goes on to write that certain requests have “wasted the court’s time.”  The court further notes that “no one, in this history of the case, has objected to any discovery requests enough to make a motion for a protective order” under Rule 26(c).  The court goes as far as to accuse the bickering parties as preferring that “the Court forget what the actual claims are in this case and start obsessing over [frivolous] details.” After explaining the foundational premise of Rule 37, helping to enforce proper conduct, the court hands down an order finalizing once and for all what documents Armstrong must produce.  The court utilizes a refined keyword list, based on certain phrases that appear repeatedly in previous motions, to rule that Armstrong must “search ALL corporate documents, files, communications, and recordings for EACH of the above phrases.” When the search is complete, a representative of Armstrong along with Armstrong’s counsel must file a sworn statement confirming that Armstrong made a good-faith effort to comply with the court’s order of production.  The court concludes by warning that failure to comply will lead to sanctions under Rule 37(b)(2)(A) and puts Optimum on notice that “the Court will not hesitate to apply to the same approach to its document production.” Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts, where she earned her B.A. in English and Political Science.  She will receive her J.D. from Seton Hall University School of Law in 2015.  After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage. 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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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