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

It Is Never Really Over: Bad Faith Leads To the Reopening of Discovery and Sanctions

In this case involving the False Claims Act, whistleblowers, or relators, alleged that the defendants, a large company, falsified testimony and spoiled discovery affecting their claim. The case was initially brought by the relators who argued that the defendants used a third party computer program, Snappy, to manipulate dosing protocols to increase reimbursements by Medicare. During discovery, a Rule 30(b)(6) witness was deposed, after being presented by the defendants as a person with the most knowledge of the computer software. This testimony would stand as the basis of discovery and arguments. A year later, the witness and the defendants claimed that the witness “misremembered” the details and the witness revised his testimony.  It was after this truth came out that the relators filed this motion for sanctions, claiming the defendants “pervasively and intentionally manipulated evidence and engaged in witness tampering in an attempt to hide the functions that Snappy performed during the relevant time period.” The court ultimately sided with the relators and decided to reopen discovery and punish the defendants with sanctions. The court found that the actions of the witness and the defendants led the case astray during discovery by reasoning that either, at worst, the defendants purposely manipulated the discovery or, at best, they failed to act in correcting the issues. The court held that the relator’s evidence did not “unequivocally” demonstrate that the defendants committed the more “nefarious” level of discovery and refused to grant their request to strike defendants’ answer. However, it found the “forgetfulness” and altered testimony “highly suspect.” Thus, these actions showed bad faith and warranted the reopening of discovery and the cost of attorney’s fees against the Defendants. 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.

Companies ARE Responsible for Contractors’ Conduct – Even if the Contractors are Non-Parties

While this case involves the alleged infringement of multiple different types of intellectual property—both patents and copyrights—along with allegations of the misappropriation of trade secrets, I will resist the temptation to discuss such claims in much further detail. Plaintiff sought sanctions because the defendant produced altered harddrives (belonging to its contractor) that contained relevant files with incorrect creation dates, and when the court compelled production of that computer, it was wiped with the CCleaner application the day before it was turned over.  No one disputes what happened, but the defendant disputes it did not condone the conduct, had no advanced knowledge of it, and that it is unfair to sanction the defendant for the independent actions of its contractor when his actions disregarded the plain instructions conveyed by counsel.  Why did this matter?  The plaintiff manufactures boat windshields and the defendant counterclaimed that Plaintiff’s CEO wasn’t the sole inventor of the windshield design, but was instead a co-inventor with one of its employees.  This employee of Defendant worked with a contractor to design the windshield.  If proven, patent co-ownership would be huge in defending against a claim of infringement.  However, the metadata of the CAD drawings illustrating the design had been tampered with—they showed a creation date in 2002 despite deposition testimony indicating creation during 2005.  To complicate evidentiary matters, the contractor also testified that emails during the relevant time period were purportedly destroyed through a “catastrophic computer failure.”  Sure.  That corresponds perfectly with the fact that the defendant produced emails allegedly sent by the contractor during the “relevant time period.”      Each side had an expert opine on the contractor’s use of the CCleaner application and what, if any, data was still recoverable.  Neither could say what data was deleted.  One expert could not verify the actual CAD file creation date and noted the metadata reflected a file creation date of June 13, 2010, but a modified date of January 14, 2002.  That expert felt the contractor’s explanation of such an anomaly was in no way supported by the evidence.  The other expert said nothing particularly relevant for the purposes of reaching a determination. Balancing the considerations, the court found that sanctions were warranted.  Even though the contractor was a non-party not within the court’s jurisdiction and acted on his own accord, sanctions were imposed to deter others who disobey court orders and destroy evidence.  Further, the court noted it was the defendant who would benefit from the lack of adverse creation dates or other negative metadata.  The court ultimately disallowed the contractor’s testimony at trial and disallowed any evidence that originated from him.  The defendant could not rely on the contractor’s deposition testimony for any purpose and could not rely on any documents sent to or from him that the defendant produced.  Attorney’s fees were also awarded for “this whole costly trip down the rabbit hole.”  To avoid this debacle, the defendant needed to preserve the support for its counterclaim.  If the contractor truly sent emails containing particularly important files to Defendant’s employee in 2005, the defendant should have preserved everything.  But to the defendant’s credit, this oversight might have been because these events occurred about ten years ago when times were drastically different. Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Does it Take for a Printout of Instant Messages to be Admitted into Evidence? Accurate Reflection.

When a defendant has been charged with rape in the second degree, it is likely he will make a push to exclude any conversations between him and the alleged victim from the trial. That is exactly the position Chabcery finds himself in. Chabcery’s wife has gotten a hold of conversations taking place between Chabcery and his underage niece-in-law. She handed over to the police a memory card containing a log of messages that were sent through MSN’s instant messaging system. The officers then printed out this message log and the People want to admit this into evidence. But Chabcery wants to do what he can to make sure those (likely) damaging messages do not see the light of day. He argues that only the original log originating from the MSN server itself is admissible because the server is the original storage source. The People argue that, actually, the memory card is the original source, so an unaltered printout qualifies as an original. Well the court actually says that both parties are wrong regarding the law. In fact, the originality of ESI is determined by whether the printout accurately reflects the information it purports to show, not by the location where the information is stored. The Court then says that whether or not the printout is an accurate reflection is directly related to the authenticity of the printout. So how is authenticity proven? Well, that is where Federal Rule of Evidence 901 comes in. That Rule states that testimony indicating that a printout is what it is claimed to be would be enough to establish authenticity. Evidence of the process or system used to create the printout that shows it has produced an accurate result would satisfy the Rule as well. The important thing to keep in mind here is that the proponent of this printout only needs to make a prima facie showing of authenticity. That is all that is required to get the printout admitted into evidence. If a prima facie showing is made, then it is ultimately up to the jury to decide on the evidence’s authenticity. In the case against Chabcery, there was “substantial” evidence of the message log printout’s authenticity. A detective was called in to testify about how he created the printout. He told the court that all he did was insert the memory card from Chabcery’s wife into his computer. He then opened the log in its text file format, and simply pressed print. He says he did not alter the log in any way, and Chabcery did not present any evidence contradicting this testimony. Based on the detective’s step-by-step explanation of how he opened the message log and created the printout, the court was satisfied that the People had made a prima facie showing of the printout’s authenticity. Therefore, the printout is admissible at trial. The takeaway here is that it does not require much to authenticate ESI. Regardless of where the information was originally stored, as long as the printout or other readable version of the information is an accurate reflection, it will be deemed to be an authentic copy and will not be inadmissible on that basis. Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of criminal law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office. Want to read more articles like this?  Sign up for our post notification newsletter, here

In a Discovery Request, Can a Party Gain Autonomous Access to the Opposing Party’s Social Media Accounts? Not Necessarily, a Party Is Only Entitled To Discovery To the Extent That the Information Is Relevant To Litigation

This case involves an employment discrimination claim that the plaintiff, Anthony Smith, levied against his former employer, Hillshire Brands, under the Family Medical Leave Act (FMLA). The plaintiff was an employee of Hillshire Brands and in a letter dated August of 2013, he was given time off of work under the FMLA until February of 2014, but Smith’s employment was terminated in September of 2013.  During the course of this suit, both parties became engaged in various discovery disputes, one of which is the subject of this order dated June 20, 2014. The defendant served the plaintiff with documents requests, which would show the plaintiff’s activity on social media websites. The defendant’s request was, Request No. 15: All documents constituting or relating in any way to any posting, blog, or other statement you made on or through any social networking website, including but not limited to Facebook.com, MySpace.com, Twitter.com, Orkut.com, that references or mentions in any way Hillshire and/or the matters referenced in your Complaint. Request No. 18: Electronic copies of your complete profile on Facebook, MySpace, and Twitter (including all updates, changes, or modifications to your profile) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, and comments for the period from January 1, 2013, to present. To the extent electronic copies are not available, please provide these documents in hard copy form. In response to these document requests, the plaintiff refused to provide his complete profile on social media websites because most of the information had no relevance to the defendant’s claims or defenses in this case. So, the defense filed a motion to compel and stated the social media profile could offer a diary of the plaintiff’s activities, thoughts, mental condition, and actions, which relate to the plaintiff’s claims for emotional distress. Also, the defendant claims the information stored in the plaintiff’s profile may provide insight as to whether the plaintiff abused his FMLA leave, which was cited as the reason for his termination. The legal standard for discovery requires that any information sought to be relevant. This seems ambiguous, but luckily, the Federal Rules of Evidence provide further details regarding what is relevant. Rule 26 requires any document requests to be tailored so that it appears to be reasonably calculated to lead to the discovery of admissible evidence. The court here states that allowing the defendant unfettered access to the social media profiles of the plaintiff would allow the defense to case “too wide a net for relevant information.” The court here cites another case, Ogden v. All-Star Career School, 2014 WL 1646934, at *4 (D. Kan. 2014), which stated, Ordering plaintiff to permit access to or produce complete copies of his social networking accounts would permit defendant to cast too wide a net and sanction an inquiry into scores of quasi-personal information that would be irrelevant and non-discoverable. Defendant is no more entitled to such unfettered access to plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in plaintiff's home. In addition to the problem of casting “too wide a net,” the court also stated that social network activity might not be as relevant to an emotional distress claim as one might think. The reason is that a severely depressed person may have a good day or several good days and choose to post about those days and avoid posting about moods more reflective of his or her actual emotional state. As a result of this analysis the court granted the defendant’s document request as it relates to only information that references the plaintiff’s emotional state and potential reasons for that emotional state. Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently Daniel is serving as counsel in the Juvenile Justice Clinic. After graduation Daniel will clerk for a trial 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 Paper Proof Proper Preservation?

In April 2014, the Honorable Dominic J. Squatrito from the District Court for the District of Connecticut handed down a decision that dismissed all but one of plaintiff Ray Tedeschi’s claims against defendant Kason Credit Corporation (“KCC”), a collections agency that wrongfully targeted Tedeschi based on a telephone mix-up.  On Both parties moved for summary judgment on claims of invasion of privacy and intentional infliction of emotional distress.  Tedeschi’s claims were largely unsupportable – not the least of which being his assertion that Kason Credit Corporation should face an evidentiary adverse inference instruction based on spoliation of electronic evidence. In sum and substance, Tedeschi claimed that KCC was harassing Tedeschi with nearly twenty phone calls over the course of a yearlong period, seeking to collect a debt from a consumer who listed Tedeschi’s new home phone number as a means of contact.  Tedeschi continually informed KCC that he was not the debtor, and asked that KCC stop calling.  Tedeschi v. Kason Credit Corp., No. 3:10CV00612 DJS, 2014 WL 1491173 *2-3 (D. Conn. Apr. 15, 2014). KCC, on the other hand, denied the volume of calls asserted by the plaintiff, and instead asserted that only two phone calls took place over that same period of time.  Id.  KCC further alleged that the behavior met the standards of the Fair Debt Collection Practices Act, 15. U.S.C. § 1692, and was not actionable. Recognizing a dispute of fact, the Court left this claim intact.  However, it’s unlikely that Tedeschi’s claim will pass muster with any jury.  Here’s why: When deposing the CEO of KCC, Karl Dudek, plaintiff learned that a “fact sheet” was generated for Tedeschi’s matter that tracked calls from KCC employees to Tedeschi’s phone number.  In response to an inquiry, Dudek indicated that the fact sheet “has probably been printed out 20 times.” Id. at *16.  Tedeschi argued that the print-out produced at the time of the deposition did not satisfy discovery requirements, since the print-out was dated December 2010, and that the original print-out must have been destroyed. KCC was able to demonstrate that the print-out was unchanged in substance or form from the first request date in June 2010 to the produced copy in December 2010.  Relying on Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), the court outlined the criteria for an adverse inference: the moving party must demonstrate that the party having control over the evidence had a duty to preserve it at the time of destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence would support the moving party’s claim or defense.  Judge Squatrito found that KCC did not have a duty to preserve print-outs, since the print-outs “merely duplicate ‘original evidence.’” Id. at *17.  Since Tedeschi was unable to support a claim that the electronic data was destroyed with any culpable state of mind, the claim necessarily fails.  See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“A party . . . must retain all relevant documents[,] but not multiple identical copies[,] in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.”). Plaintiff’s claims against KCC were doomed from the start, and Tedeschi would have been smart to see the writing on the wall – if not the words on the print-outs. 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.

When Harry (Destruction of Evidence) Met Sally (Criminal Law Culpability)

In the Sixth Circuit, a party seeking sanctions for the destruction of evidence must show three things: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a "culpable state of mind"; and (3) 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. You can find countless articles that outline when the obligation to preserve documents occurs. The Federal Rules of Civil Procedure state, that whenever it can be “reasonably anticipated” that an action will be filed, all parties have a duty to preserve potentially relevant evidence. You can also find numerous articles about the third fact, an individual’s claim that the requested destroyed electronic discovery is relevant to their cause of action or defense. However, this article is about the second factor, the evidence was destroyed with a "culpable state of mind.” The Model Penal Code 2.02(2) establishes that there a four culpable states of mind: purposely, knowingly, recklessly, and negligently. At common law there are more than just the four Model Penal Code culpable states (wickedly, purposely, intentionally, willfully, knowingly, recklessly, maliciously, negligently, scienter). A person acts purposely with respect to a material element of an offense if it is his conscious object to engage in conduct of that nature or to cause such a result; and he is aware of the existence of such circumstances or he believes or hopes that they exist.  A person acts knowingly if he is aware that his conduct; and he is aware that it is practically certain that his conduct will cause such a result. A person acts recklessly when they have a conscious disregard of unjustifiable and substantial risk. Finally, a person acts negligently when a person should have known better then to take that substantial risk that the material element exists or will result from his conduct. The disregard of the risk must be a gross deviation from the standard of care that a reasonable person would have followed. The court in Siggers recognized that "failures to produce relevant evidence fall 'along a continuum of fault—ranging from innocence through the degrees of negligence to intentionality . . . .'" And, "'[o]nce the duty to preserve attaches, any destruction of [evidence] is, at a minimum, negligent.'” This case is an example of one area of the law crossing over into another. The Sixth Circuit incorporated aspects of criminal law into the determination of sanctions. However, the transition is appropriate. A person must purposely, knowingly, recklessly, or negligently destroy electronic documents and evidence to be guilty and worthy of sanctions. Here, the court held that sanctions were not appropriate in this situation because “Siggers failed to demonstrate Campbell’s ‘culpable state of mind’ in destroying the evidence and show that responsive documents existed and were among the destroyed. The court reasoned that although Campbell's discovery failures reflect negatively on her in regards to Siggers' motion, they do not, when weighed against the above considerations, merit the imposition of sanctions. Instead of sanctions, the court offered Siggers the opportunity for redress by questioning Campbell at trial about her failure to timely impose a litigation hold and about the other matters related to his assertion that she must have had relevant e-mail communications that no longer exist. If courts are following such a policy it is important that individuals understand the possible (criminal law based) consequences of their actions. This case illustrates that the importance of proper electronic data management and hold policies in order to avoid potential penalties and sanctions. 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 the Sanction of An Adverse Inference Appropriate?

The sanction of an adverse inference is appropriate, but not mandatory, in cases involving the negligent destruction of evidence.  The court will determine on a case-by-case basis whether sanctions are appropriate where a party negligently destroyed evidence.  However, the court is more likely to impose sanctions when a discovery obligation is breached through bad faith or gross negligence rather than ordinary negligence.  In Schulman v. Saloon Beverage, Inc., Schulman (the “Plaintiff”) sued Saloon Beverage, Inc. (the “Defendant”) under Vermont’s Dram Shop Act for allegedly serving Mark Clarke, a drunken patron, four Sierra Nevada draft beers approximately ten minutes before he collided head on with the Plaintiff’s car.  The Defendant contended that Clarke was not at its saloon on the night of the accident.  The only documentary evidence available to prove Clarke was at the saloon were the records of checks because Clarke allegedly paid in cash.        The Plaintiff filed a Rule 37 motion seeking sanctions for failing to preserve or permitting the destruction of the checks.  The Plaintiff alleged that the Defendant failed to produce all of the check receipts for the night in question.  After the Defendant produced printed copies of all the check receipts, the Plaintiff then alleged that the Defendant destroyed or altered the evidence because the check receipts contradicted other evidence which showed that Clarke was at the saloon.  The Plaintiff wanted to prove that the Defendant altered the receipts by analyzing the electronically stored information (“ESI”) in original format; however, the computers were not preserved when the saloon went out of business.         The issue in this case concerned whether the Plaintiff established its spoliation claim against the Defendant for destroying the ESI.  A prerequisite to a spoliation claim is that the sought-after evidence actually existed and was destroyed.  In order to obtain an adverse inference instruction regarding the loss or destruction of evidence, a party 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. In Schuman, the Plaintiff established that the Defendant negligently destroyed the ESI.  There was no dispute that the check receipts were relevant because they involved the disputed issue of whether Clarke was at the saloon.  The court found that the Defendant either knew or should have known that the ESI would be relevant to litigation because the Defendant was on notice when the Plaintiff made a claim in the Defendant’s bankruptcy proceedings.  Furthermore, the court concluded that the ESI was destroyed through ordinary negligence, a culpable state of mind.  Although the Plaintiff established that the Defendant negligently destroyed the ESI, the court still held that an adverse inference instruction was not appropriate because the Plaintiff’s suggestion of prejudice was based on conjecture.  Instead of imposing the sanction, the court merely held that evidence of the destruction of the ESI may be admissible at trial. The sanction of an adverse inference is not mandatory in cases involving the negligent destruction of evidence.  The court has the discretion to determine whether the sanction is appropriate where a party negligently destroys evidence on a case-by-case approach.  A party seeking an adverse inference instruction should attempt to bolster its claim by establishing that the other party breached a discovery obligation through bad faith or gross negligence.      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.

Georgetown Law’s 12th Annual Advanced eDiscovery Institute—Another Fine Presentation

eDiscovery experts gathered at the 12th Annual Advanced eDiscovery Institute in Washington, D.C. to discuss the hottest topics in eDiscovery. The two-day event, hosted by Georgetown Law, took place on November 19th and 20th, just 10 days before the new Federal Rules of Civil Procedure will go into effect. The event launched with a keynote speech from Christopher Surdak, the renowned author of Data Crush which won GetAbstract's International Book of the Year Award in 2014. Mr. Surdak also served as a panelist in several programs following his keynote address, in which the hottest topic appeared to be the new Federal Rules of Civil Procedure and their possible implications in the world of eDiscovery. While some seemed to be worried about the effects of the new rules, most were hopeful that they will increase efficiency and cooperation among parties throughout the discovery process, especially during meet and confer efforts. The Honorable Judge Mark Coulson of Maryland expressed that he hoped to see the new rules be “used as tools and not weapons,” and the Honorable J. Michelle Childs noted that the new rules will not have a drastic effect in areas where parties are already open to cooperating and communicating honestly with one another. Another hot topic was Native Production. At a program that got heated quickly, panelists passionately debated the pros and cons of providing documents in native form. Attorney, Craig D. Ball, argued that the eDiscovery process is backwards and that all documents should be provided in native form to increase cost efficiency and minimize room for error. Attorney, David J. Kessler rebutted, emphasizing that opposing counsel cannot be trusted to provide adequate security for the native documents once they are turned over. The Honorable Paul S. Grewel, who seemed highly amused by the debate, joked that he “can’t wait to write an opinion on this.” Overall, the presentations were well thought out, intriguing and enlightening. We thank Tiffany Joly, her fine staff, and Georgetown Law for inviting eLessons Learned (eLLblog.com) to cover the program. It will be interesting to see how the new Federal Rules of Civil Procedure shape the eDiscovery process and we look forward to hearing further discussion of their effects, and other burgeoning eDiscovery issues, at next year’s Annual Advanced eDiscovery Institute.

Did the Budget For Electronic Copies Just Go Down?

When you think about making a copy, you may think of copying and pasting a document into a thumb drive or a folder in your documents.  You might also think about scanning a document and saving that copy as a PDF.  However, the question in many cases has become what is the price of that copy, and is it a cost that can be recovered. In the case of In Re Text Messaging Antitrust Litigation, the court addressed this very vague and unsettled question.  The court did so by accepting the rule previously set forth in Race Tires Am., Inc. v. Hoosier Racing Tire Corp.,[1] which basely states the following: The cost of making an electronic copy may be recovered, but costs that are unnecessary to making the actual copy will not be recovered. In other words, you may not recover for any extra enhancements made to ESI; however, you may recover any costs associated with the basic copy of the information.  Why is this frustrating?  Because technology presents numerous standard features which streamline and lower the cost of discovery that are deemed unnecessary enhancements under this rule. This case presents a perfect example of an enhancement that is deemed unnecessary in regards to making copies of electronic data.  The technology is called optical character recognition (OCR), which allows a computer to recognize text so that it may be copied, pasted, and searched.  The defendants assert that OCR is a necessary part of copying ESI in order to perform basic interactions with an electronic document (i.e., copying and pasting from the ESI copies). Most individuals assume that the ability to copy and paste data from an electronic document is standard; and as such, it logically follows that this would be a necessary part of making an electronic copy.  However, here, the court deemed that OCR is not a necessary part of making copies. Under this framework, even the commonplace technological advancements such as providing the ability to copy and paste from a copied electronic document are not seen as a necessary cost.  Therefore, the decision to utilize such technology is done on producing party’s own dime. In this case, the court cites Race Tires again stating, “gathering, preserving, processing, searching, culling, and extracting ESI simply do not amount to `making copies.'"  They further explained that only scanning and file format conversion could be considered under the small umbrella of “making copies.” Further, anything that can be deemed “processing" is also not seen as part of “making copies”.  The court even expands on this to say that even if the processing was “essential” to making an electronic copy “comprehensive and intelligible” the services of processing the data are not included in making copies, and therefore, will not be recoverable. The Court in this case does not specifically determine the award of costs, but rather directs the parties to resubmit a budget in compliance with these rules.  However, in the often cited Race Tires case, the court basically limited the awardable costs to only the scanning of hard copies, the conversion of files to appropriate formats, and the transfer of VHS tapes to DVDs. 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. [1] 674 F3d 158 (3d Cir. 2012).

So the Opposing Party Accidentally Sent You Private E-Mails Between the Client and Their Attorney? Your Next Move Can Make the Difference Between Being Able to Use the Information or Not

Arthur Lawrence’s attorneys must have thought that he had struck gold because among the 15,000 documents turned over as discovery from Dependable Medical Transportation Services, LLC, there were a number of e-mails between the Dependable Medical and their attorney. Lawrence immediately jumped at the opportunity to use these e-mails to his advantage. The e-mails were the Holy Grail, the promised land; they would surely bolster his case against the defendant and they might even give him the leverage to win a motion for partial summary judgment. Without a moment’s hesitation, Lawrence filed that motion for partial summary judgment; however, he was in for a rude awakening. The surprising part of this story is the fact that Lawrence was represented by counsel. He had retained the Phillips Deyes Law Group to represent him in this matter. Therefore, the ignorance of the court rules when dealing with such a matter is inexcusable; these attorneys should have known that not following the proper procedure in such a matter would result in an impending detriment to their client. When the defendant learned that the plaintiff had these e-mails in their possession they requested that they be returned in accordance with Arizona Rule of Professional Conduct 4.4 which provides that "[a] lawyer who receives a document and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender and preserve the status quo for a reasonable period of time in order to permit the sender to take protective measures." Further the comment on this rule state,  [i]f a lawyer knows or reasonably should know that a document was sent inadvertently, then this Rule requires the lawyer to stop reading the document, to make no use of the document, and to promptly notify the sender in order to permit that person to take protective measures." Nevertheless, the plaintiff ignored this rule and the defendant’s requests, did not return the documents, and utilized the e-mails in their motion for partial summary judgment. This was a mistake, which would ultimately cost them any chance to use the e-mails at all. In their ruling denying the motion for partial summary judgment, the court referenced a rule that the plaintiff’s should have already known Rule 26(b)(5)(B). The court stated, "The requirements in Rule 26(b)(5)(B) are straight forward. Once a party is notified that a claim of privilege is being made, the party must either return or destroy the document or the party may turn the document over to the court for determination of the claim." Piasa Commercial Interiors, Inc. v. J.P. Murray Co., 2010 WL 1241563 *2 (S.D. Ill. Mar. 23, 2010). Therefore, since the plaintiffs had not followed the rule they not only lost their motion, but also lost any chance to argue tor their right to use the e-mails in any capacity. 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. Want to read more articles like this?  Sign up for our post notification newsletter, here.  

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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.

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    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg


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