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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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Document Refinement and its Apparent Prejudices

On December 16, 2015, the Honorable Susan D. Wingenton granted GDC’s Motion to Quash Defendants William Baroni and Bridget Kelly’s subpoena duces tecum, which asked the GDC to produce “Any and all handwritten or typed notes, stenographic transcripts and audio and/or video recordings of witness interviews conducted by Gibson Dunn during its representation of the Office of the Governor of New Jersey from on or about January 16, 2014 to the present.”  Defendants also included a request to produce any and all metadata and document properties for all typed notes and interviews as well.  In her Opinion, Judge Wingeton took certain issue with the ethically questionable document preparation methods of the GDC, yet ultimately decided to grant the Motion to Quash.  The GDC had a somewhat perplexing response to Defendant’s first requests as to notes, transcripts and recordings of witness interviews conducted by the GDC during its representation of the OGNJ.  They claimed that no such materials currently existed.  Here, the GDC deviated from normative interview information collecting techniques; here witness interviews were summarized electronically by one attorney while the interviews were being conducted and then edited electronically into a single, final version.  This differed greatly from their former methods of practice, where contemporaneous notes were taken by GDC interviewers and that those notes were preserved after the summaries were completed.  By contrast, the GDC clearly intended that contemporaneous notes of the witness interviews and draft summaries would not be preserved, as they were overwritten during revisions and in preparing the final summary.  The Court found this to be “unorthodox” at the least, and noted its disapproval of their actions, likening them to have the same effect as deleting or shredding documents.  Unfortunately, however, the Court had no reason to doubt the GDC’s honesty with respect to their methods or their responses to Defendant’s request for documents.  The Court did sympathize with the both Baroni and Kelly, but granted the motion anyway. It is clear to see that the GDC’s actions, though ultimately condoned by the Court, were not done with the intent to deliver a full and honest discovery of the requested materials.  While the Court may have deemed such actions as legal, GDC’s document preparation methods raise many ethical implications, and could have clearly been used to destroy important information that Defendants here were entitled to.  Indeed, this method of refining interview summaries and information could have easily omitted details the defense may have found useful.  Doing so did not provide the defense with the transparent information they should have received by request; instead they had to make due with the GDC’s white-washing of the information.  In all, the GDC should have been more responsible and fair with the way it conducted and kept record of it’s interviews. This method of refining information can only seek to unfairly hurt their opposing counsel.  Garrett Keating received his Bachelor’s degree from Trinity College (2011) and majored in both Political Science and Public Policy and Law; he will receive his J.D. from Seton Hall University School of Law in 2016.  He has worked primarily in the legal fields of Medical Malpractice, Personal Injury, and Class Action law

When Will Protective Coding Finally See Its Day In Court?

The Southern District of New York Magistrate Judge Peck may have changed the way attorneys view discovery procedures forever. In an unprecedented ruling, Judge Peck held in Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012) that technology assisted review (“TAR”) is “an acceptable way to search for relevant ESI in appropriate cases.” To follow up this historic step, Judge Peck ruled again in 2015 that TAR is appropriate and should not be discouraged or held to a higher standard that could deter parties from using this cost and time-effective tool. TAR uses technology and statistics to determine which documents or data will be relevant to the subject matter of the case at hand. If the topic or issue is “attorney-client privilege regarding a work-monitored email address,” for example, the system would scan a large number of documents or a sample size and find all documents bearing the relevant information. This allows the producing party to save time and cost if personnel required to scan that many documents the same amount of time. In the 2014 Tax Court case Dynamo Holdings Ltd. P'Ship v. Comm'r of Internal Revenue, 143 T.C. 9, 2014 WL 4636526 (T.C. Sept. 17, 2014), opponents of this system argued that incomplete responses to discovery are inevitable. To that complaint, the court in that case found that the party may simply file a motion to compel if that belief is supported, a notion with which Judge Peck agrees. “In, essence, what the parties are asking the Court to consider [is] whether document review should be done by humans or with the assistance of computers.” The more prominent question presented to Judge Peck in Rio Tinto was the level of transparency and cooperation required from the parties “with respect to the seed or training set(s).” The training or seed sets are the sample set of documents used to code the entire set and label documents as relevant or irrelevant to the case.  Judge Peck suggested that the producing party turn over the entire seed set, regardless of the label, to ensure transparency and function as the potential resolution to this uncertainty. Currently, there is a debate amongst courts as to whether the seed set should be ordered to be produced, or whether the parties must generally agree to such production. The Judge was of the opinion that even this debate could be put to rest with a few cooperation-based measures, stating that “requesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as non-responsive.” While the Rio Tinto court did not decide on the actual transparency rules because the parties stipulated to TAR use, the Court noted that it was important to opine on this matter for future cases, as TAR is a valuable tool in e-discovery procedures. Going forward, it will likely become necessary for courts to rule on whether or not TAR may be compelled and in what way. It is foreseeable that cases involving high levels of distrust among parties will lead to such an opportunity. Svjetlana Tesic is a magna cum laude graduate of Montclair State University, where she received her B.A. in Jurisprudence, with a minor in Business. She will receive her J.D. from Seton Hall University School of Law in 2016, where she serves as Student Bar Association President and is a member of the Moot Court Board. After graduation, Svjetlana will clerk for a trial judge of the Superior Court of New Jersey in the Passaic County Vicinage. 

When Are Parties Entitled to “Sample” Private Social Media Activity to Uncover Probative Evidence?

In this case, the plaintiff sued her former employer for violating the Fair Labor Standards Act by requiring her to work forty-eight hours a week without an uninterrupted lunch break, and only compensated her for forty hours per week. In order to rebut these allegations, the defendants requested, among other things, the plaintiff’s Facebook account information during the relevant time period. When the plaintiff refused to comply with the request, the defendant sought relief from the court for an order compelling her to produce the following discovery: Using the ‘Download Your Information,’ feature or other comparable technique, produce a complete history of your Facebook account, including without limitation all wall posts, status updates, pictures, messages, communications to or from your account, and any other content displayed at any time on your Facebook account. The defendants argued that this information was necessary for two reasons: 1) to prove the plaintiff was engaged in non-work-related activities during the time she claimed to be working, and 2) to disprove the plaintiff’s emotional distress claim. As to the first purpose, the court held that the defendants were not able to support their position that a broad inspection of the plaintiff’s social media account was reasonably calculated to lead to the discovery of evidence demonstrating where the plaintiff was during the hours she claimed to be working. “Defendants have not made a sufficient predicate showing that this broad class of material is reasonably calculated to lead to the discovery of evidence establishing Plaintiff's whereabouts during the Relevant Time Period.” However, the court agreed that the discovery of limited social media information was permissible to uncover activity relating to the plaintiff’s emotional distress and any potential alternative causes of that distress. Therefore, the court order the plaintiff to produce “a sampling of Plaintiff's Facebook activity for the period November 2011 to November 2013, limited to any specific references to the emotional distress Plaintiff claims she suffered in the Complaint, and any treatment she received in connection therewith.” (internal quotations omitted). The court also ordered the plaintiff to preserve all of her Facebook account information for the duration of the litigation because the defendants were permitted to request the rest of the plaintiff’s Facebook activity after reviewing the sampling if they discovered probative evidence. Danielle is a third year student at Seton Hall University School of Law (Class of 2016). Prior to law school, she graduated magna cum laude from The College of New Jersey, where she earned her B.S. in Criminology with a minor in Arabic. After graduation, Danielle will clerk for a civil judge in the Superior Court of New Jersey.

What Should a Litigant Do When Discovering from a Small-Time Adversary?

United States Magistrate Judge Kathleen Tomlinson of the Eastern District of New York recently denied a defendant law firm’s motion to impose sanctions and an adverse inference against its former client. At the evidentiary hearing, the court heard testimony from two of the plaintiff’s employees, who recounted a series of unfortunate events and office Google-ing that lead to the destruction of all documents regarding the plaintiff’s financial condition in 2009. The present issue arises from a terminated construction contract nearing its 20th anniversary.  In May of 1996, Abcon Associates, Inc. was retained by the USPS for a construction project in Queens, New York.  Within the year, USPS terminated its contract and eventually Abcon and its president, Michael Zenobia, Jr. and his wife were ordered to pay a $2 million judgment to the United States Fidelity and Guaranty Company (USF&G).  To pay this, Abcon and the Zenobias borrowed $2 million from New York Community Bancorp, Inc. (NYCB). In April of 1998, Abcon retained Haas & Najarian LLP (H&N) to sue USPS.  Abcon and H&N entered into a legal services agreement agreeing that would retain a lien in any amounts recovered from USPS, subordinate to any funds owed to NYCB. After protracted litigation (10 years!) Abcon received a $2.4 million judgment, and then effectively lost it due to various judgments and claims against it.  In 2008, a court order directed distribution of money to H&N (resulting in a final payment of $463,000 for its legal fees). Another creditor appealed that order, and Abcon argued that H&N should return the money paid to it.  H&N, apparently seeing the writing on the wall that it was now or never to get paid, refused to return the payment. On June 30, 2009, Abcon’s creditors settled among each other.  Abcon objected to the distribution of money, claiming again that H&N should not have been paid before NYCB. Abcon filed a complaint against H&N on February 27, 2012, alleging breach of contract of the parties’ legal services agreement.  During discovery, H&N requested: “All documents concerning Abcon's outstanding liabilities as of June 30, 2009 in excess of the sum of $5,000 owed to Persons other than [the previous litigation’s creditors]” and “Documents concerning Abcon's financial condition of June 30, 2009, including by way of specification but not limitation, a balance sheet and an accounts payable ledger.”  Essentially, H&N wanted to be able to show that even if they were wrongfully paid in 2009, returning the money would benefit Abcon’s creditors, not Abcon. Abcon contended that they had absolutely no documents that were responsive to those two requests, due to an office move resulting in extreme downsizing of files and power outages that totally corrupted any possibly responsive electronically stored data.  They were responsible prior to when Abcon “became inactive” and moved offices to a smaller location in September 2009, Patricia Van Dusen’s, a long-term Abcon employee and “Director of Information Services,” job was to sort the files and keep items that needed to be saved, and destroy the rest.  In order to determine what needed to be saved, Van Dusen conducted internet research on what should be kept, maintained, etc. and threw out those documents before June 30, 2009. Next, Abcon’s Director of Marketing and Sales (and apparently also its “de facto IT person”) Eros Adragna, did not protect the company’s electronic data during the office move.  As one might expect, this ended poorly: multiple power outages occurred at the new location and, big surprise, Abcon’s server was outdated and vulnerable to viruses.  Adragna tried to back up the data but it was too late: nothing that he saved was responsive to H&N’s discovery request. Both Van Dusen and Adragna testified before the magistrate that they did not think or know there was a “litigation hold” on Abcon’s financial records, even though Abcon was the party who eventually filed suit.  In the end, Abcon lucked out. While the court found that Abcon had a duty to preserve potential evidence, the scope of that duty did not necessarily extend to the 2009 financial documents because H&N’s legal argument that it didn’t breach the contract was so unexpected that Abcon could not have reasonably anticipated that the documents would have been relevant to its breach of contract case. Abcon’s employees breached their duty to preserve documents, but as the court says, “at most” acted negligently as to documents that were not clearly relevant to H&N’s defense.  Therefore, the court declined to issue sanctions and an adverse inference against Abcon. Business owners, especially small business owners should learn from Abcon—don’t trust the determination of destruction of files to a couple of internet searches run by a non-attorney, and don’t entrust the preservation of data to someone also in charge of running the company’s marketing and sales. Van Dusen should have consulted with an attorney, and Abcon or Adragna should have contacted an IT specialist to preserve the data as soon as they realized there were problems with the server.  When preserving data is a side-hobby, possibly important documents that you have a duty to preserve will inevitably fall through the cracks. Angela Raleigh is a third year law student at Seton Hall University School of Law.  She attended Montclair State University, graduating summa cum laude, and owes her interest in law to her late great-uncle, Michael Mastrangelo, who let her “work” in his law firm at age four.

Can a Former Employee Get Away with Evidence Spoliation?

We often hear about the use of forensic evidence in murder mysteries pertaining to DNA testing or finding fingerprints at the murder scene.  As technology continues to advance, however, forensic evidence has made its way into civil cases.  In the technological world, even if you delete an email or a text message, the information can easily be restored.  Furthermore, evidence that you blatantly tried to delete a particular document or text can be used to draw a negative inference regarding your culpability.  Before considering “hiding” or “deleting” information on a computer or smartphone device, always remember that forensic evidence will come back and bite you. In a May 2015 case, HMS Holdings Corp. v. Arendt, two former HMS employees learned the hard way that human beings cannot outsmart technology.  To assist their new employer, Public Consulting Group, Inc. (PCG), compete against their former employer, Health Management Systems (HMS), defendants Sean Curtin and Danielle Lange violated their post-employment covenants and used confidential HMS documents to the benefit of PCG.  In response to the litigation, PCG circulated a Litigation Hold Notice to particular employees, including Curtin and Lange, which advised the employees of their obligation to preserve all electronically stored information (ESI) “on computers, removable or portable storage media, office computers, cellphones and personal computers.” About a month later, the parties to this case entered into a Stipulation Regarding Expedited Discovery.  Under the Stipulation, the defendants needed to forensically image their personal computers, phones, zip drives, and other electronic devices to be searched.  Although defendants handed over certain devices, not all devices were handed over and in some cases the defendants were not honest about what information these devices really contained or, more accurately, what they no longer contained. This case mentions four devices in particular: (1) Curtin’s Macbook Pro; (2) Curtin’s external Toshiba hard drive; (3) Lange’s PCG laptop; and (4) Lange’s iPhone.  Ultimately, the court found spoliation of evidence on all four devices and sanctioned the defendants accordingly. In order to prove spoliation of evidence, the party seeking sanctions, here HMS, must show that: (1) the party with control over the evidence was under an obligation to preserve it at the time of alleged destruction, which begins when a party reasonably anticipates litigation; (2) the party destroyed the records with a culpable state of mind; and (3) the destroyed evidence was relevant to the party’s claim or defense.  Relevancy of the third element is presumed upon intentional, willful or grossly negligent destruction of evidence. First the court analyzes Curtin’s Macbook Pro, which forensic evidence revealed had run a “Secure Erase Free Space” function six times after the Litigation Hold Notice.   Forensic evidence also showed that Curtin did not use this function prior to these six times.  Curtin alleged that he ran this program to help increase his laptop’s operating speed.  Despite his explanation, Curtin failed to provide evidence as to why he failed to use a different version of the software that would increase operating speed without permanently deleting files.  With a showing of willful destruction, a presumption of relevance attaches. Unlike his Macbook, Curtin was unable to provide any forensic imaging of his Toshiba external hard drive, despite the fact that considerable evidence showed that had copied volumes of confidential HMS materials to it the day before he left.  Upon review, the court finds that Curtin intentionally and willfully failed to produce the hard drive despite his legal obligation to do so.  Again, a presumption of relevance attaches to the hard drive ESI. Lange has the same fate as Curtin before the court.  Shadow Copies, partial snapshots in time of a computer’s content made by the Microsoft Windows system, revealed that her PCG laptop contained HMS files before the pending litigation that no longer existed after the filing of the suit.  Evidence shows that not a couple, but rather 5,300 files, were deleted from her laptop during a month-long period of time.  Lange, also an attorney, claimed that these were pertinent files but were deleted to protect client confidences.  Despite her explanation, the court found spoliation and a presumption of relevance attached. Finally, Lange’s text messages caused her some problems as well.  Lange claimed to have replaced her iPhone 4 for a new iPhone 5, something many could relate to in 2014 when the new and improved Apple device hit the market.  However, unlike many other customers, Lange’s old iPhone 4 had important text messages pertaining to the case and was replaced after the issuance of a Litigation Hold Notice.  Lange claims that she had dropped her iPhone 4 so badly that even those at the AT&T store could not restore her messages.  Despite this explanation, forensic evidence revealed that messages were actually uploaded to her laptop computer one week after her upgrade.  In light of this evidence, the court again found spoliation of evidence and a negative presumption of relevance. With all four electronic devices being used to destroy evidence, the court now is tasked with determining the proper sanctions.  The court has wide discretion in determining appropriate sanctions.  Due to the egregious misconduct of both Curtin and Lange, the court allows the jury to draw a mandatory adverse inference regarding the destroyed evidence.  Since there is no way to determine the contents of the evidence destroyed, the court finds this to be the most fair to HMS. In addition to the mandatory inference, the court also requires defendants to pay HMS’s reasonable attorney’s fees, costs, and expenses incurred as a result of their misconduct, with no reimbursement or indemnification from PCG.  Also, since Lange is an attorney, the court will forward this information to the appropriate ethics board regarding her fitness to practice law.  Hopefully the defendants in this case learned that forensic evidence does not lie and as technology increases, it is increasingly more difficult for us to cover our own tracks by simply clicking a “Delete” button. Laura Cicirelli, a Seton Hall University School of Law student (Class of 2016), has served as an Associate Editor and is currently serving as the Editor-in-Chief of the Seton Hall Law Review. Following graduation, Laura will be joining the firm of Debevoise & Plimpton as a corporate associate in its New York City office.  Prior to law school, Laura attended the University of Scranton (Class of 2013) where she majored in marketing and double minored in operation and information management and philosophy.

Want to Delete Those Important E-mails? Appeal to the Notion of Cleaning Out Junk.

To receive a mandatory adverse-inference instruction for spoliation, three requirements must be met: 1) The targeted litigant destroyed evidence at a time when he had a duty to preserve the evidence, 2) the targeted litigant acted with intent or gross negligence, and 3) the destroyed evidence was relevant to the movant’s claims. The finding of relevance turns on whether a reasonable trier of fact could infer that the destroyed or unavailable evidence would have been of the nature alleged by the party affected by its destruction. If the three requirements are met, the trier of fact may receive a mandatory adverse-inference instruction, meaning they must infer that the evidence was unfavorable to the discovered party. Courts are usually reluctant to grant a dispositive motion based solely on spoliation unless the discovered party acted with bad faith and willfulness, and there is no other effective remedy. Enter the former Chairman of the Board of Celestica Inc. (“Chairman”). In 2007, a written document-preservation instruction was sent from corporate counsel to all employees at the outset of the litigation in In re Celestica Inc. Securities Litigation. In 2012, when the Chairman retired from the Celestica Board, he deleted all of his e-mails on his personal computer. The Chairman described the practice as “routine,” because he “[didn’t] want to fill up [his] hard drive with a bunch of junk.” Hard to disagree with him, right? Cleaning out our computers and inboxes has come to be a regular and necessary burden. Based on the Judge’s findings of simple negligence, he agreed. The court found that in the instant case, defendants were not grossly negligent, and noted that the Chairman himself was not a defendant in the litigation. Defendants did their due diligence in issuing a written hold instruction to both corporate employees and to the Board of Directors. There is nothing to indicate that defendants were responsible for the Chairman’s disregard of that instruction five years after its issuance. The court reasoned that at most it could infer that defendants may have failed to collect documents saved on the Chairman’s hard drive during the years the case was pending prior to his retirement, but that this is merely simple negligence. As for relevance and prejudice, the court noted that although the deletion of the Chairman’s e-mails makes it difficult to assess the relevance of the e-mails, the fact that e-mail communications have both an addressor and an addressee casts doubt on the likelihood of irremediable prejudice to plaintiffs. The court addressed plaintiffs’ concerns about the unavailability of e-mails between the Chairman and another Executive Committee member, whose computer was unavailable because of a hard-drive failure. The court pointed out that both executives had been deposed and had testified about the emails, and that there was no evidence that the lost e-mails even addressed the issues at play in plaintiffs’ case. Finally, the court focused on the fact that plaintiffs made no effort to show that they did not have ample documentation of the corporation conditions they claim were misrepresented or concealed by defendants. Ultimately, the court denies plaintiffs’ application for a mandatory adverse-inference instruction, but grants them a permissive adverse-inference instruction. Renée received her B.A. in Criminal Justice from Villanova University in 2013. She will receive her J.D. from Seton Hall University School of Law in 2016. After graduation, Renée will serve as law clerk to a criminal judge of the Superior Court of New Jersey in Hunterdon County.

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

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