Authored By: Marco Ferreira

Citation: 150 Nassau Assoc. LLC v. RC Dolner LLC, 96 A.D.3d 676 (N.Y. App. Div. 2012)

Employee/Employer Implicated: Counsel, Client

e-Lesson Learned: eDiscovery disputes should be resolved among the parties. When disputes reach the court, judges will likely not resolve the issue in the best manner for the parties and will instead choose the easiest and most efficient option.

Tweet This: Resolve eDiscovery disputes without judicial intervention to avoid mutually unrewarding results.

It's no secret that courts prefer settlements over protracted litigation. Because the court system encounters an incredibly heavy case load, parties are heavily encouraged to resolve disputes amongst themselves. This is especially true for discovery disputes. Parties are expected to deal with any hiccups in the discovery process through negotiation and discussion between each other, with little court intervention.

Authored By: Catherine Kiernan

Employee/Employer Implicated: Executives, In-House counsel, document custodians, all levels of employees

e-Lesson Learned: Electronic communications between employees that make a mockery of company policies and practices exposed through even the preliminary phases of e-discovery can quickly erode the legitimacy of a company and expose it to serious litigation.

Tweet This: Intra-Office E-mails: What used to be unreported office gossip now potentially exposes companies to liability

Serious problems can arise when what used to be office gossip around the water cooler instead manifests in discoverable intra office e-mails.

Authored By: Tracy Azinge

Citation: Hameroff & Sons, LLC v. Plank, LLC, 36 Misc. 3d 1229(A) (N.Y. Sup. Ct. 2012)

Employee/Employer Implicated: Contract Administrator

e-Lesson Learned: Willful and contumacious destruction of relevant documents concerning reasonably anticipated litigation could cost the offending party preclusion of evidence or documentation necessary to support claims or defenses.

Tweet This: Don’t get your evidence excluded – Do not willfully destroy documentation when litigation is reasonably anticipated!

Take caution not to destroy documentation when litigation is on the horizon!  When litigation is reasonably anticipated, the parties have an affirmative obligation to ensure that documentation is not negligently or willfully destroyed.  Failing to retain relevant documentation can lead to the preclusion of evidence necessary to make your case, as it did in Hameroff & Son, LLC.v. Plank, LLC.

Authored By: Alex Weininger

Citation: In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335 (N.D. Ga. 2012)

Employee/Employer Implicated: In-house counsel, Assistant General Counsel, Outside Counsel, Internal Technology Department

e-Lesson Learned: Failing to conduct a reasonable inquiry into the completeness of discovery can subject you to sanctions and costs.

Tweet This: Sanctions and soaring litigation expenses are the true cost of Delta and AirTran’s $15 checked-baggage fee.

A lawsuit over  a policy charging plane passengers for their checked luggage has put lawyers across the country on notice as to what constitutes a “reasonably inquiry” when it comes to complying with discovery obligations.  And the lesson cost Delta and AirTran a lot more than a $15 checked-luggage fee.

Authored By: Katlyn Ryan

Citation: Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio 2008)

Employee/Employer Implicated: Counsel

e-Lesson Learned: Failing to place a sufficient litigation hold on a computer system in anticipation of litigation can have serious financial and other consequences.

Tweet This: Protect yourself and your clients – Be timely in executing litigation holds

An attorney has a duty to preserve discovery prior to pending litigation.  Failing to properly execute a litigation hold can lead to a plethora of other issues.  Most importantly, failure can leave attorneys and their clients vulnerable. 

Authored By: Courtney O’Brien

Citation: Moreno v. Ostly, 2011 WL 598931 (Cal. Ct. App. Feb. 22, 2011)

Employee/Employer Implicated: Counsel, Client

e-Lesson Learned: Failing to disclose to the Court, and opposing counsel, that your client no longer possesses the cell phone from the relevant time frame, opposing the discovery request as too broad when you know the phone no longer exists, and then providing the new phone for inspection as if it was the old phone, will likely result in sanctions for misrepresentations to the court, and for wasting time and money.

Tweet This: Tell the Court that a Client doesn’t have the old cell phone – don’t try to pull a fast one and produce the new phone

Don’t knowingly produce incorrect electronic devices for discovery! When opposing counsel requests production of your client’s cell phone from the relevant time period for inspection, it is your duty to provide accurate information regarding the whereabouts of the phone. 

Authored By: Amanda Miceli

Citation: Siani v. State Univ. of New York at Farmingdale, 2010 WL 3170664 (E.D.N.Y. Aug. 10, 2010)

Employee/Employer Implicated: State University IT Department; Employees

e-Lesson Learned: When in doubt don’t delete! However, court will deny an adverse inference sanction, despite finding that defendants negligently deleted emails after the duty to preserve arose, where plaintiff could not demonstrate that the allegedly deleted emails were relevant.

Tweet This: Is it safe to delete your Groupon e-mails?

Often, when entering one’s e-mail account, a person will encounter a plethora of advertisements, chain e-mails, spam, and other irrelevant junk mail. Pursuant to their daily habit, one sifts through their mailbox in an effort to delete any hourly Groupon deals or invitations to join new dating websites, in order to find the e-mails important to their career, education, etc. However, when does a routine deletion of spam constitute a legal violation? For the average lay worker, without clear advice of legal counsel, it is difficult to discern which deletions will come back to bite you in the end during litigation.  In a 2010 case, a discrimination lawsuit exposed how a seemingly harmless deletion to clean an inbox could have resulted in a legal sanction.

Authored By: Chrissy Caputo

Citation: In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va. 2008).

Employee/Employer Implicated: Outside Counsel, Information Technology Provider

e-Lesson Learned: Failing to properly limit a subpoena to relevant, non-privileged e-mails that fit within an exception to the U.S. Privacy Act will be quashed.

Tweet This: You’ve got mail…and AOL won’t give it to others without a fight

Contrary to popular belief, AOL is still an internet service provider and has recently made itself relevant again.  During the Hurricane Katrina litigation in McIntosh v. State Farm Fire & Casualty Co., two non-party witnesses discovered what they believed to be fraud on behalf of State Farm.

Authored By: e-Discoverygirl

Citation: Viramontes v. United States Bancorp, 2011 U.S. Dist. LEXIS 7850 (N.D. Ill. Jan. 27, 2011)

Employee/Employer Implicated: Bank Manager, Entire Company

e-Lesson Learned: Unless litigation was imminent or reasonably foreseeable, a company does not have a duty to preserve electronically stored information.

Tweet This: Are you about to press the delete button? STOP and THINK - is it likely someone will sue me?

  Am I allowed to delete this? Do I have to preserve this email? When a former employee sues you for employment discrimination and requests documents that you irretrievably destroyed, are you going to be sanctioned? Unless litigation was imminent or reasonably foreseeable you are off the hook. Luckily the defendant in Viramontes v. U.S. Bancorp had no obligation to preserve.    

Authored By: Stephen Bauer

Citation: Mackelprang v. Fid. Nat'l Title Agency of Nev., Inc., U.S. Dist. LEXIS 2379 (D. Nev. Jan. 9, 2007)

Employee/Employer Implicated: Mid-Level Employee, CEO, In-House Counsel

e-Lesson Learned: Technology may be paperless, but it always leaves a paper trail. Use records to help yourself and act knowing that records are being saved against you.

Tweet This: Allow technology to take the “he said, she said” out of sexual harassment. Don’t think your personal settings are impenetrable.

A higher-up sexually harasses a mid-level employee. This sounds like every company’s bi-annual Human Resources lecture, but I’ll spare the burnt coffee and “trust falls” because the details in this account provides a lesson for both employees and their employers, preventing a disastrous situation.