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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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.  

Deleted Documents? Improper Withholding of Evidence?

Larry Klayman sued six separate journalist defendants for defamation. This case is about Klayman wanting more discovery from the defendants. Specifically, Klayman’s motion is to compel the production of documents and to hire a computer expert. In this case, Klayman has conceded the fact that he is a public figure. So, in order to win in a defamation suit, he must prove by clear and convincing evidence that the journalists published the statements about him with actual malice. Thus, Klayman made this discovery motion to try to obtain “any and all documents, discussions and/or publications that refer or relate in any way to Plaintiff Larry Klayman within the past five years,” as well as several other document requests. Klayman contends this information is relevant to state of mind of the journalists. However, the defendants represent that they have already provided Klayman with all relevant information. Based on this representation, the court denied Klayman’s request to compel document production. Klayman also petitioned for a computer retrieval expert to be hired to go through each defendant’s computer files. Klayman claimed that the defendants had improperly withheld documents. However, the court ruled that the plaintiff must show good cause in order to compel a forensic expert, and here he has failed to do so. The court further stated that his assertions were “conclusory and unpersuasive.” Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick in 2012 with a B.A. in philosophy and political science.    Want to read more articles like this?  Sign up for our post notification newsletter, here.

Predictive Coding v. Human Review: Which Will the Court Favor?

A party has been burdened with manually reviewing 565,000 potentially relevant documents for search term hits. This manual method of review was agreed on by both parties and memorialized in a court order at the start. Shortly into the review process, the plaintiff realized this method would be costly and time consuming, and took it upon themselves to apply a predictive coding method using the agreed upon search terms. They then moved before the court to be able to use these predictive coding techniques, and not human manual review, to review the documents. The plaintiff argued that the modification to predictive coding should be utilized because it would achieve a more accurate measure of relevant documents, in addition to saving time and money. The defendant argued the opposite, believing that the predictive coding protocol was complicated and had various other issues involved. They argued that other courts, which have allowed predictive coding, have stressed the need for transparent and cooperative behavior by all parties, a manner of which plaintiff in this case has not acted. They even went as far as to say that the predictive coding protocol utilized by the plaintiffs did not comply with the “best practices” for the chosen software.   The court, although in support of predictive coding, ordered the plaintiff to produce all documents in the agreed upon manner (Human review wins!). “If the parties had worked with their E-discovery consultants and agreed at the onset of this case to a predictive coding based ESI protocol, the court would not hesitate to approve a transparent mutually agreed upon ESI protocol.”  But here, their hands were tied by the earlier court order.   The court also stated that, and agreeing with the defendant’s argument, predictive coding requires a heightened degree of transparent cooperation among parties. “In the few cases that have approved technology assisted review of ESI, courts have consistently required the producing parties to provide the requesting parties with full disclosures about the technology being used, processes, methodology and documents used to “train” computers.” Here, the court found that the Plaintiff has been unwilling to engage in the level of transparency necessary, which they believed would “only result in more disputes and delays.” TAKEAWAY: The parties, especially the moving party, should have prepared a electronic discovery strategy from the beginning, as the main problem here was that the plaintiff sought to modify an already agreed upon order and the court thought it was too late in the game. Additionally, the parties must be open and transparent about the methodology being used with the technology if predictive coding is the agreed upon ESI method.   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.

Protection For Blogs Can Stop Discovery On Personal Blogger Information!

This case involves ACT, a career guidance service firm that assists job seekers throughout their job search, suing Daniel Drasin, the administrator of a blog known as Random Convergence. According to ACT, Drasin exercises editorial control over the blog. ACT complains that the blog disparage ACT's services and damages ACT's business and reputation. On March 11, 2013, Magistrate Judge Kristin Mix granted ACT's motion to serve third party subpoenas on Drasin, demanding that he produce the name and contact information for each of the people who posted disparaging remarks on Drasin’s blog. On April 18, 2013, Drasin, then self-represented, filed a third-party motion to quash the subpoenas, stating that they violated the bloggers’ rights to First Amendment right to anonymous speech. He also argued that most individuals who posted comments on the Blog did so anonymously, and he explained that he had no records of those who chose to remain anonymous. The court sided with Drasin and quashed the subpoena. The court found that the Subpoena imposes two types of burden on Drasin. First, in order to comply with the subpoena, Drasin must surrender his personal hard drives to ACT for up to thirty days. Personal computers generally cannot function without their hard drives, so this requirement would force Drasin to spend up to thirty days without the use of his personal computer. Second, forcing Drasin to surrender his hard drives to ACT would give ACT access to Drasin's personal files. Moreover, ACT has alternative means to obtain the information it seeks, such as serving a subpoena on Google. The court also found persuasive that the benefits of the Subpoena appear to be minimal, as there is no indication in the record that Drasin possesses any information that would be relevant in the Colorado Action beyond that which he has already provided. The takeaway message is that subpoenas can be quashed if discovery imposes an undue burden, if the information is irrelevant to the action, and if there are other avenues from which the information can be obtained.   Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated cum laude from UCLA and completed graduate work in Biomedical Science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here

Employee Fired By City, Alleges Spoliation of Evidence That Suggests Retaliation

In the United States District Court for the District of Kansas, the plaintiff Helget sued the city of Hays, Kansas for the allegedly wrongful termination of her employment on May 15, 2013.  Helget claims that she was fired after she submitted an affidavit in a lawsuit brought by a former Hays, Kansas Police Department Officer.  In anticipation of her own lawsuit, on June 26, 2012, Helget’s counsel sent defense counsel a letter requesting the preservation of certain information, including “internet usage, including e-mail usage, by each employee in the Hays Police Department.”  Helget subsequently filed her complaint once she was terminated, allegedly in retaliation for her participation in the first lawsuit.  The city denied Helget’s claims, stating that she was terminated because she “misused city computers” among other reasons. Helget soon filed a motion to compel defendants to “initiate a litigation hold, for preliminary sanctions for spoliation of evidence and for leave to conduct supplementary discovery on spoliation.”  She believes that the city failed to put a litigation hold in place and spoliated evidence by destroying a service containing certain internet usage logs and allegedly overwrote or deleted other electronic documents and electronically stored information.  Helget also served a subpoena for the deposition of a corporate representative of the defendant city on issues relating to spoliation.  The defendant city responded by claiming they were only under a duty to preserve evidence relevant to this litigation, and not to preserve everything as is. The court began by discussing the issue of spoliation and explicitly noted that “[s]uch preservation may not be ‘selective.’”  Additionally, “the duty to preserve commences with the filing of a lawsuit, but the duty may arise even before a lawsuit is filed if a party has notice that future litigation is likely.” The court found that defendant city had a duty to preserve “at least a portion of the electronically stored evidence at issue” since the defendant itself put electronically stored information at issue by alleging Helget was fired, in part, for improper personal use of city computers.  The court further supported this duty to preserve by citing Helget’s letter which requested preservation and thus put the city on notice of potential litigation.  While the court openly acknowledged that the defendant city did not have the obligation to preserve all documents within the scope of Helget’s notice letter, the defendant city did have an obligation to do more than “simply ignore the letter, which was apparently their response.” The court then ordered that the defendant city to put a litigation hold in place immediately.  However, the court chiseled away at this obligation by noting that there “is no justification…for the defendant city to have entered into a city-wide litigation hold of such information, as advanced by Plaintiff.”  The relevant scope, defined by the court, was computer usage of the plaintiff’s immediate coworkers, the key players, and those who held substantially similar positions for the city. The analysis then shifted toward whether Helget had established that any such electronically stored information evidence was in fact destroyed.  The court looked at three categories of information individually.  The first was the city’s “Websense serve”/internet usage history.  While the court agreed that this server was more a firewall than a data log of employee internet usage, the court did find that “there are potential spoliation issues relating to the internet usage and email usage of the identified ‘key players,’ the plaintiff’s immediate coworkers, and all individuals holding substantially similar position for the defendant city, regardless of department.”  the defendant city was instructed to submit to the plaintiff a proposal for “compiling, reconstructing, and/or producing to Plaintiff” such documents of relevant parties. Next, the court examined the spoliation of documents and electronically stored information in regard to the computer Helget used during her employment.  Because this computer is relevant to one of the reasons for the plaintiff’s termination, the court finds that Helget is “entitled to a forensic image of the hard drive of the computer she most recently used while employed by the defendant.”  The court went so far as to chastise the defendant city by stating that “[t]his computer should have been better protected by a litigation hold” and ordered that the parties shall split the cost of imaging the hard drive. In conclusion, the court finds that “the defendant city had an obligation to preserve this information.  Regardless of whether it was destroyed intentionally or negligently, the plaintiff has provided sufficient evidence that the information is no longer readily available for production.”  Because the the defendant had a duty to maintain this information, the court ordered the defendant city to bear the cost for a forensic restoration as a sanction for the defendant city’s breach of responsibility. Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts where she earned her B.A. in English and Political Science.  She will receive her J.D. from Seton Hall University School of Law in 2015.  After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Sanctions May a Court Impose On a Party That Fails to Comply With a Discovery Order?

The plaintiff and the defendants both sold Belly Bands, the plaintiff alleged that both Belly Bands were maternity band used to hold up pants. The plaintiff previously filed cases against the defendants for trademark infringement, patent infringement and unfair competition in 2006 and 2008, but those cases were later resolved by settlement agreements. In 2013, the plaintiff filed the recent action alleging that the defendants breached both settlement agreements by selling and advertising Belly Bands. During discovery, the defendants produced some electronically stored information (ESI). The parties contested the sufficiency of the defendants’ ESI production. On December 20, 2013, the court ordered the the defendant to produce all documents referring to customer comments or complaints regarding the defendants’ Belly Band and disclose its search methods within thirty days. On January 21, 2014, the defendants issued a declaration stating that they were in Europe when the court issued this order, and could not immediately comply. They also stated that they would need a computer expert to help them retrieve deleted customer e-mails. On January 3, 2014, the defendants retained a computer expert. On February 4, 2014, the defendant told the plaintiff that they found additional ESI, but did not produce the ESI at that time. The plaintiff filed a motion on February 10, 2014, for sanctions against the defendants for failure to comply with the court order within the thirty day timeframe, seeking: attorneys fees and costs associated with the defendants failure to comply; an order that the defendants disclose all hard drives and provide the plaintiff with access to all email accounts; and an order precluding the defendants “from opposing the plaintiff’s claim that the defendants’ Belly Bands were used to hold up [pants,] from opposing the plaintiff’s damage calculations, and from introducing any opposing evidence wit respect to the damages calculation.” At the time the motion was filed, the defendants still had not produced any additional ESI. Within two weeks after the motion was filed, the defendants produced over 1,000 new electronic documents. The court began its analysis by noting that courts may sanction a party for discovery abuses pursuant to the Federal Rules of Civil Procedure and the court’s inherent powers. Rule 37(b)(2)(C) states a court must order a party who failed to comply with a discovery order to pay the opposing party’s reasonable expenses associated with failure to comply, including attorney’s fees, “unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Sanctions are permissible regardless of the reason for the party’s noncompliance. Moreover, willfulness, fault, or bad faith are not required to impose Rule 37 sanctions, unless the sanction is dismissal. “However, in order for the sanction to comport with due process, the sanction imposed under Rule 37 must be specifically related to the particular claim which was at issue in the order to provide discovery.” Rule 37 sanctions should only be imposed when the party’s failure to comply prejudiced the nonoffending party. Furthermore, the court may impose three types of sanctions pursuant to its inherent powers specifically when there has been spoliation of evidence, including: “1) the court may instruct the jury that it may infer that evidence made unavailable by a party was unfavorable to that party; 2) a court can exclude witness testimony based on the spoliated evidence; and 3) the court can dismiss the claim of the party responsible for the spoliation.” “In determining what sanctions are appropriate in cases of spoliation, courts consider: 1) the degree of fault of the party who altered or destroyed the evidence; 2) the degree of prejudice suffered by the opposing party; and 3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.” The chosen sanction should be “determined on a case-by-case- basis, and . . .commensurate to the spoliating party’s motive or degree of fault in destroying the evidence. First, the court held that the plaintiff was entitled to an award of monetary sanctions under Rule 37. the defendants failed to substantially justify why they couldn’t produce all responsive documents within the court ordered thirty day timeframe. The fact that the defendants were in Europe when the court issued the Order did constitute substantial justification to excuse their noncompliance. the defendant did not alert the court of their travel plans, request an extension, instruct their office manager to comply with the Order, or offer a reason as to why they did not immediately retain a computer expert to assist them in complying with the Order. Further, even once additional ESI was discovered, the defendants failed to produce said ESI for almost a month. Thus, the defendants’ actions prejudiced the plaintiff by forcing the plaintiffs to subpoena third parties for responsive documents, by preventing the completion of necessary depositions, and by having to file the instant motion. Moreover, the court held that the defendant must disclose its hard drives and provide the plaintiff with access to all its email accounts, subject to the defendants’ privileges or privacy interests. The court found that there was real danger that evidence on the the defendants’ hard drive had been destroyed. Further, the defendants made an array of false statements, such as claiming they produced all responsive documents when they in fact had not, and claiming that no documents had been deleted during the time of litigation when overwhelming evidence indicated otherwise. The court found that the plaintiff needed access to the defendants hard drive to prevent any more documents from being destroyed and ensure all responsive documents were produced. Additionally, based upon the same reasoning, the court granted the plaintiff access to all of the defendants’ email accounts, including Amazon, Facebook, Twitter and eBay accounts. However, the court held that the plaintiff failed to prove that the court should prohibit the defendants “from opposing the plaintiff’s claim that the defendants’ Belly Bands were used to hold up [pants,] from opposing the plaintiff’s damage calculations, and from introducing any opposing evidence wit respect to the damages calculation.” The court stated “preclusion remedies are a harsh remedy that should be imposed only in extreme circumstances.” Here, given that the plaintiff obtained documents from third parties and that the plaintiff may recover additional responsive ESI from the defendants’ harddrives and email accounts, the plaintiff cannot—at this time—demonstrate that the defendants’ conduct “impaired the plaintiff’s ability to go to trial or threatened to interfere with the rightful decision of the case.” However, the court denied the plaintiff’s request for preclusion sanctions without prejudice, thereby allowing the plaintiff to request preclusion sanctions should the plaintiff’s search of the defendants’ harddrives and email accounts reveal that the defendants knowingly destroyed evidence and that destruction threatened the plaintiff’s ability to secure a just outcome. Thus, when a court orders ESI production, parties would be wise to immediately comply with the order, or immediately inform the court of substantial reasons as to why compliance will be delayed.   Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Take Discovery Seriously

The court first directed the defendant to produce the file of the plaintiff’s insurance claim in 2007, and needless to say, even in 2014 the defendant still had not produced everything.  Over one year later, the court granted the plaintiff’s first motion to compel.  When a flood of documents appeared at a deposition in 2011, discovery was reopened and the defendant was sanctioned.  Another motion to compel was granted in 2012, and this time it was for the deposition of a representative of the defendant who could testify about the efforts the defendant had taken to respond to discovery requests.  Yet another flood of documents appeared, and the representative deposed was unable to describe any of the defendant’s discovery efforts.  The plaintiff moved again for sanctions, which were granted in 2013.  At that time, the court also granted the plaintiff the costs and legal fees due to the late production of documents.  As relevant here, before the court in this motion was the assessment of legal fees and another production request.  The defendant did not want to produce more documents because by this time the defendant said the emails were on backup tapes that were purportedly not reasonably accessible because of undue burden or cost.  Can you guess what the court thought of that argument?  We’ll get to that in a moment. Without delving into specifics, the court painstakingly analyzed the plaintiff’s legal bill for the various motions, filings, etc. and awarded $81,997.60 in attorney’s fees.  Some of these costs were attributable to an IT specialist hired by the plaintiff that was to help the attorneys ask proper questions at the defendant’s representative’s deposition so they could ensure protocols were followed during discovery and that sufficient documentation was recovered (and if discovery was delayed because of an honest mistake, the explanation for that could be ascertained).  Even though the individual deposed actually had no knowledge of the defendant’s discovery practices, the defendants couldn’t escape paying for the IT specialist’s and attorney preparation time. On top of the nearly $82,000 awarded in legal fees, the defendant said it would cost $200,000 to recover the backup tapes containing emails.  While the actual cost is unclear, the defendant was ordered to turn over eight weeks of tapes, at its expense, of the thirteen individuals the plaintiff identified.  The judge even left the door open for the the plaintiff to get additional discovery if further exploration is necessary.  However, this isn’t the end. Sometimes, a single well-placed footnote can be unbelievably powerful.  This case illustrates just that, as the judge cleverly observed the defendant’s conduct as such: [c]onsistent with Hartford’s approach to discovery in this case, it has spent more time and resources challenging two entries totaling 1 hour than the amount requested by the plaintiff for those entries.  The court trusts that Hartford’s attorneys will notify their client how much they incurred in attorneys fees on these two entries. So please, take discovery seriously. 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 Should a Party Not Do When Compelled to Turn Over Computers after Having Already Admitted How Much Activity Took Place on Those Computers? Turn Over Computers That Show No Record of Activity

It is never a good idea to raise the suspicions of the court. If a party is going to try to cover its tracks, it has to do so subtly and discretely. It certainly has to do a better job than Dr. O did in the above case. She revealed too much information about herself in the early stages of the case, and it came back to hurt her when it was time to produce discovery. MetLife has brought suit against Dr. O, after the doctor tried to make an insurance claim based on an alleged disability. First of all, Dr. O delayed her responses to initial discovery requests, which is just never a good idea! But not only that, it was subsequently discovered that she had email accounts containing relevant documents that she had not even previously disclosed! Needless to say, Dr. O has already lost all benefit of the doubt in this case. Dr. O was ordered to turn over the computers she used during the relevant period so that MetLife could perform a key word search. Instead of turning over all computers that she used, she turned over only the two computers that she owned. She claimed that she did not have access to all the computers she used anymore, because some were in Internet cafes she used while traveling. OK, fine, but even still, the computers she did turn over, the two computers she owned and presumably used most often, reflected very little activity! Her hard drives showed no evidence of her sending or receiving any emails during a five-year period. In addition, the hard drives reflected a minimal amount of Web browsing. Well that certainly piques the Court’s interest, especially in light of Dr. O’s earlier testimony in which she admitted to searching the Internet on a daily basis! So she searches the Web every single day, and yet there is no record of it on either of her personal computers? Suspicions have been officially raised! But it does not end there. Dr. O specifically testified at her deposition that she used her personal computer (one of the two she handed over) to type up a twenty two-page letter complaining about MetLife. Well, lo and behold, there is no record of this letter reflected in the personal documents on the computers she turned over. So now Dr. O has been caught in a direct lie! But wait, there’s more! Dr. O testified that she engaged in online banking…but the computers show no record of that, either. She also admitted to doing a lot of online shopping as a symptom of her depression and PTSD. And yet, there is nothing on her computers that is consistent with even a single purchase! Dr. O was not subtle and discrete in covering her tracks, and the court saw right through it. It explained that in light of earlier testimony that the doctor is an avid computer user, the lack of use on the computers she turned over demonstrates that she did not provide all of her principal computers. The court found that Dr. O willfully failed to comply with the court’s orders compelling production, and that this refusal was done in bad faith, prejudicing MetLife’s ability to present its case. Therefore, due to the extent and continued nature of non-compliance on the part of Dr. O, the court imposed an adverse inference instruction against the doctor. Again, this just goes to show that a party has to be more careful than Dr. O was in this case. It cannot claim to use computers all day, every day, and then respond to an order of production of these computers by turning over computers that reflect very little, if any, use. Dr. O was too obvious about what she was doing, and the court sanctioned her for it. Do not be like Dr. O! 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.

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