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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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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.

Federal Judge Sanctions Corporate Defendant and Its Counsel for Gross Negligence, Bad Faith, and Failure to Comply With Discovery Requests and Court Order

In Brown v. Tellermate Holdings Ltd., Tellermate Holdings, the defendant company, terminated two employees for allegedly failing to meet sales targets over several years.  The employees, feeling that they were wrongfully terminated due to their age, filed an employment discrimination action against the company as well as other entities and individuals associated with Tellermate. Throughout pre-trial proceedings, the case was plagued with numerous discovery mishaps.  The plaintiffs requested from the defendant company data stored and maintained by Salesforce.com,[1] which would, in theory, evidence plaintiffs’ sales records over the last few years in addition to allowing the plaintiffs to compare their sales figures with other (younger) employees.  However, even though numerous discovery conferences were held, numerous discovery motions filed with the court, and several discovery orders issued by the court, the defendant corporation failed to produce the requested data and documents.  Ultimately, the plaintiffs filed for judgment and sanctions under Federal Rule 37(b)(2); the court held a three-day evidentiary hearing on the matter. The presiding judge, United States Magistrate Judge Terence P. Kemp, identified three areas in which the defendant company or its counsel failed in its obligations to the plaintiffs and the court in relation to production of documents and data: Defendant’s counsel failed to understand how Tellermate’s data stored with Salesforce.com could be obtained and produced to plaintiffs, which resulted in counsel making false statements to the plaintiffs’ counsel and the court; By failing to understand how the defendant’s data was stored and maintained, defendant’s counsel took no steps to preserve the integrity of the information in Tellermate’s database located with Salesforce.com; Defendant’s counsel failed to learn of the existence of documents relating to a prior age discrimination charge until almost a year after plaintiffs requested the documents; Defendant’s counsel produced a “document dump” resulting from counsel’s use of an overly-broad keyword search that yielded around 50,000 irrelevant documents, which plaintiffs’ counsel could not review within the time period ordered by the court. The Salesforce.com Data Judge Kemp found that Tellermate’s failure to preserve and produce the data logged on Salesforce.com’s website irreparably deprived the plaintiffs of reliable information necessary in supporting their claims.  Although defendant’s counsel initially stated that Tellermate “does not maintain salesforce.com information in hard copy format,” “cannot print out accurate historical records from salesforce.com,” and that “discovery of salesforce.com information should be directed at salesforce.com, not Tellermate,” the court found such statements to be on their face false.  In fact, Tellermate did have access to the information sought by the plaintiffs as one, and sometimes two, of Tellermate's employees enjoyed the highest level of access to the Salesforce.com information.  The court determined that the information eventually produced by the defendants could not be trusted as “even a forensic computer expert has no way to detect hat changes, deletions[,] or additions were made to the database on an historical basis.”  Because of Tellermate’s failure to preserve the Salesforce.com data, Judge Kamp precluded Tellermate from providing evidence showing that the plaintiff-employees were terminated for their alleged underperformance. Counsel’s Obligations With Respect to ESI The court found that the defense’s counsel fell short of their well-established obligations[2] to critically examine the documents and data Tellermate provided to them.  Tellermate made false representations to its counsel about the data’s availability and therefore caused undue delay in document production as well as false and misleading arguments to be made to plaintiffs’ counsel and to the court.  Subsequently, the plaintiffs were forced to file discovery motions before the court to address these discovery issues which produced the Salesforce.com data that was never properly preserved albeit its significance to the plaintiffs’ case. Judge Kemp ultimately determined that counsel for the defendant conducted an inadequate investigation of Tellermate’s electronic data while simultaneously failing to understand the most basic concepts of cloud computing and cloud storage, which led to counsel’s failing to preserve key electronic data. Control of Data Stored in the Cloud As mentioned above, Tellermate and its counsel repeatedly represented to the plaintiffs and to the court that it did not possess and could not produce any of the Salesforce.com data requested by plaintiffs.  Additionally, the defendants asserted that in light of those facts, the defendants could not preserve the data stored on Salesforce.com’s databases at any point prior to litigation. Judge Kemp dismissed these claims.  The court concluded that, without any factual basis whatsoever, no substantive argument could be made that Tellermate was prohibited from accessing the information stored on the Salesforce.com databases or that Salesforce.com was responsible for preserving Tellermate’s information and data as it was the entity that maintained possession and control of the data. In reality, Tellermate was the custodian of the data stored on the Salesforce.com databases.  While information can be stored in locations outside the immediate control of the corporate entity by third party providers, it can still be under the legal control of the owner of the data and therefore must be produced by the owner under Federal Rule 34(a)(1)(A).  Additionally, had Tellermate’s counsel critically examined the agreement between Tellermate and Salesforce.com, it would have realized that Tellermate was the owner of all data created by its employees and that Tellermate could, at any time, download the data stored on the Salesforce.com databases for preservation and production purposes. Limitations on Document Production to Avoid “Document Dumps” Tellermate produced to the plaintiffs 50,000 pages of irrelevant documents, classified by Judge Kemp as a “document dump.”  Tellermate’s counsel refused to disclose which search terms it used in deciding which documents to produce to the plaintiffs, claiming that the search terms were privileged.  In actuality, the court discovered, Tellermate’s counsel only used the full names and nicknames of employees as its search terms, which obviously yielded irrelevant documents.  Without reviewing the returned documents, and because the court’s deadline for producing relevant documents was rapidly approaching, Tellermate’s counsel produced to the plaintiffs the documents as “Attorney’s Eyes Only.” The court recognized that a protective order was permitted only when counsel held a good faith belief that such information constituted a “trade secret or other confidential research, development, or proprietary business information, and that such material was entitled to a higher level of protection than otherwise provided in the protective order.”  Tellermate could not demonstrate entitlement to this level of protection with respect to the search terms used in procuring documentation for discovery: The alleged burden imposed by a high volume production does not provide the producing party or its counsel free reign to choose a given designation and ignore the Court’s order pertaining to that designation. First, the court looked to whether competitive harm would result from the disclosure of the types of documents produced by Tellermate to a competitor; however, Tellermate’s memorandum on the issue did not contain any evidence about the harm which might result if the plaintiffs were permitted to review any particular document that was labeled “Attorney’s Eyes Only.” Second, Tellermate’s argument as to the harm it would experience was entirely conclusory and was not supported by evidence: Apart from the general concept that disclosure of some types of sensitive information to a competitor may result in harm, it contains no particularized argument which is specific to [the plaintiff], the way in which he was competing with Tellermate, and how the disclosure of any one of the 50,000 pages marked as attorneys-eyes-only would harm Tellermate’s interests. The court was astounded that Tellermate continually failed to meet the burden required to designate the documents as “Attorney’s Eyes Only” and, up until the hearing date, made no effort the redesignate a single page of the 50,000 produced in order to permit the plaintiffs from viewing the documents. Sanctions The court had absolutely no qualms with an award of attorneys’ fees for all motion practice connected to the preservation and production of the Salesforce.com data.  “Had Tellermate and its counsel simply fulfilled their basic discovery obligations, neither of these matters would have come before the Court, or at least not in the posture they did.”  The court took great concern to the extraordinary lengths the plaintiffs had to go to in order to obtain the documents maintained by the defendant and, even after several rounds of motions, were not able to obtain all of them.  The “Attorney’s Eyes Only” designation on the 50,000 documents produced was also unfounded, the court held, and unduly precluded plaintiffs from necessary evidence that supported their case, which warranted fees under Federal Rule 37(a)(5)(A). Conclusion Tellermate provides a warning to all attorneys that the realm of technology in which their clients are constantly interact with is always changing.  Therefore, so does the practice of electronic discovery.  Counsel must always meet its duties with respect to ESI by engaging in discussions with its clients and opposing counsel about ESI; being aware, and perhaps even knowledgeable, of new and emerging technologies; and investigating and assessing with its clients the sources and status of potentially relevant ESI.  By forgoing these practices, counsel opens itself and its clients to easily avoided and costly sanctions. Daniel is the Editor-in-Chief of eLessions Learned and a third-year law student at Duquesne University.  To read more about him, click here. [1]       Salesforce.com is a cloud-based customer relationship management system with more than 100,000 corporate customers around the world.  Tellermate and its employees used Salesforce.com to track their sales and other interaction with customers.  The court recognized that each sales person using the Salesforce.com management system could add, remove, or otherwise change data on their sales account. [2]       See Zubulake v. UBS Warburg LLC, 382 F.Supp.2d 536 (S.D.N.Y. 2005) (counsel had an affirmative duty to monitor preservation an d ensure all sources of discovery information were identified).

You Might Want to Rethink Your Next Fishing Expedition in Tennessee

The scope of discovery, as stated in Federal Rule 26, has been construed very broadly in its relevancy standard.  Any and all requesting parties can seek production of documents and information as long as “the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”  And while this standard has the tendency of having the producing parties provide all requested, non-privileged documents within their control, some courts have determined there are exceptions. In Potts v. Dollar Tree Stores, Inc., the Middle District of Tennessee determined that requests for private Facebook pages require the rquesting party must meet a threshold showing that the information sought is likely to be found on the social media site and lead to admissible evidence. In Potts, the plaintiff filed suit against her former employer, Dollar Tree Stores, Inc., claiming harassment and discrimination based on the plaintiff’s race, a hostile work environment, and retaliation.  After discovery disputes, the defendant filed a motion to compel claiming that the plaintiff did not produce a number of requested items and documents, including: Facebook data, any and all computer and storage devices used during and after the plaintiff’s employment, tax returns, any relevant documents in online email accounts, as well as other items.  The plaintiff’s response to the defendant’s request asserted that she produced what documents were in her possession, that the defendant’s request for the physical production of her computer was unduly burdensome, and that the defendant is not entitled to access to her private Facebook account due to other court holdings requiring a threshold showing that the Facebook page would undermine the producing party’s claim(s). Since, the Sixth Circuit Court of Appeals had not yet ruled on requesting parties’ access to private Facebook pages, the Middle District of Tennessee relied on outside court rulings in Thompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) and McCann v. Harleysville Ins. Co. of N.Y., 910 N.Y.S.2d 614 (N.Y.App. Div. 2010).  Courts in Michigan and New York held that, while Facebook accounts are not considered privileged or necessarily protected by notions of privacy, requesting parties should not be allowed to go on fishing expeditions in hopes of finding relevant information to their case.  In resolving the issue of rummaging for information, the courts held that a requesting party seeking access to private Facebook accounts must meet a threshold showing that the social media page will likely lead to admissible evidence.  Adopting the idea of a “threshold showing,” the Potts court determined that the defendant fell short in showing that the information it gathered from the plaintiff’s public Facebook page would lead to admissible evidence if the plaintiff had given more access. The court determined that the defendant was entitled to certain documents in the defendant’s motion to compel that Plaintiff had not yet produced in discovery, but accepted the plaintiff’s assertion that she no longer had certain requested documents that would not have been relevant to the case.  When dealing with the physical production of the plaintiff’s computer, the court resolved that an agreed neutral party would search for relevant documents on the plaintiff’s computer, using both parties’ agreed-upon word search.  As for the the defendant seeking attorneys’ fees incurred in preparing the motion to compel, the court ruled that Federal Rule 26(b)(2) gives discretion to the court in relieving any undue burdens on responding parties during discovery.  The court did not require the plaintiff to pay the defendant’s attorneys’ fees due to the plaintiff having reasonable objections to the defendant’s discovery requests.

So You Want to Destroy Documents? Then Be Prepared to Be Sanctioned!

This case involves a lawsuit for patent infringement concerning memory chip technology. In 2006, the court found that SK Hynix Inc. had infringed on Rambus, Inc.’s patent. The issue presented in 2013 was in regards to the destruction of documents. The court found that Rambus had spoilated documents in bad faith that ultimately prejudiced SK Hynix. The three main factors that the court looked at in this case in making a determination about sanctions are: The degree of fault of Rambus; The degree of prejudice suffered by SK Hynix; and Whether there is a lesser sanction than dismissal that will address the prejudice to SK Hynix and will deter similar conduct in the future by Rambus and others. The degree of fault is clearly present in this case on behalf Rambus. While it was reasonably foreseeable that litigation would occur, Rambus not only destroyed large volumes of documents but they kept no records of what was destroyed. Because of this, it is impossible to know what evidence was lost and it is unknown if the documents destroyed were singled out because they were potentially damaging documents. The difficulties created as a result of Rambus’ conduct are the fault of Rambus and therefore they must suffer the consequences. While it is unclear the degree of prejudice suffered by SK Hynix, it is presumed that SK Hynix has been prejudiced in its ability to litigate its equitable claims and defenses as a result of the destruction of documents related to the Joint Electron Engineering Conference. This missing information would have been required to license its technology at a fair, reasonable, and non-discriminatory rate. To satisfy the third prong of the test, the court decided that a dismissal was not warranted in this case as the conduct by Rambus was not severe enough. While bad faith and prejudice are both present in this case, they would not justify a dismissal. The less severe sanction available would be a monetary fine. While not as severe, the fine most likely will still deter others from engaging in similar conduct in the future. Ultimately, while the court found that what Rambus did was not right, it did not feel that is was so egregious that it warranted a dismissal of the verdict and rather felt a fine was more appropriate. As a result, Rambus was fined $250 million dollars. This monetary sanction is to be applied as a credit against the previous judgment awarded. To avoid an outcome like this in the future, all parties involved in litigation should never destroy documents. Jennifer Whritenour received her B.S. in Political Science and History in 2011 from the University of Scranton. In 2014 she received her J.D. from Seton Hall University School of Law.

Is Negligent Spoliation of Evidence Sufficient to Warrant Permissive Adverse Jury Instruction?

An employer doesn’t need an attorney to tell him or her that destroying evidence relevant to litigation may make the court very unhappy.  Often times, when a party acts in bad faith by intentionally destroying evidence, the court will impose a sanction such as an “adverse inference” jury instruction.  This type of instruction orders the jury to infer that the missing evidence would have been detrimental to the guilty party.  But what if a party did not intentionally destroy evidence in bad faith, but rather lost the evidence due to a negligent mistake?  Should the same adverse inference instruction be used? In Pillay v. Millard Refrigerated Services, the court held that even if a party is merely negligent in destroying evidence, a jury may presume that the evidence would have been unfavorable to that party.  This permissive adverse inference instruction differs from the circumstances where the court determines that the party acted in bad faith because the court gives the jury the option of making an adverse inference.  Typically, when bad faith is present, the court will instruct the jury that it should presume the missing evidence is detrimental to the party who destroyed it.  This instruction differs from the instruction in Pillay where the court gave the jury the option of making the adverse inference. The Pillay court imposed a permissive adverse inference jury instruction when an employer negligently deleted relevant information.  The employer claimed that it terminated an employee because the employee’s production levels were down.  The employee claimed that he was terminated for unlawful reasons and that the employer’s labor management system (“LMS”) would show that the employee’s production level exceeded expectations. The employer, however, no longer possessed the LMS data because of routine deletions of the data after one year.  The data was deleted despite opposing counsel’s numerous requests to preserve all relevant documents and evidence. The employer argued sanctions were not warranted because the LMS data was not deleted intentionally or in bad faith.  The court rejected this argument holding that even without a showing of bad faith, the court has the discretion to impose sanctions when a party’s negligence causes information to be lost.  The court sanctioned the employer with the following permissive adverse jury instruction: Pillay contends that Millard at one time possessed data documenting [an employee’s] productivity and performance that was destroyed by Millard.  Millard contends that the loss of data was accidental.  You may assume that such evidence would have been unfavorable to Millard only if you find by a preponderance of the evidence that (1) Millard intentionally or recklessly caused the evidence to be destroyed; and (2) Millard caused the evidence to be destroyed in bad faith. Moving forward, this case means litigants must be extra careful in preserving evidence that may be relevant to litigation.  One negligent misstep, even if done without any showing of bad faith, may be the cause of an adverse jury instruction that can potentially be the deciding factor in a lawsuit. E-DiscoParty, a Seton Hall University School of Law graduate (class of 2014), served on the executive board of the Seton Hall Law Review and is a member of the Interscholastic Moot Court Board. E-DiscoParty now clerks for a Justice on the Supreme Court of New Jersey.