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Welcome to the new eLessons Learned
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.
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.
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
Interested students may apply for the opportunity to write for e-Lessons Learned by filling out the simple application. Go There
Attorney-client privilege is a complex and often misunderstood aspect of discovery. This privilege generally protects a party from being compelled to disclose confidential correspondence between the party and the party’s attorney. The traditional purpose of attorney-client privilege is to serve as a shield to prevent a party from being forced to turn over the strategies, opinions, and work product of an attorney. However, it is possible, under the right circumstances, for a party to waive the privilege in order to prove a fact vital to the party’s case. Such was the circumstances in Cormack v. United States. In this case, the plaintiff claimed that a mail-sorting system used by the United States Postal Service (USPS) is infringing on his patent for the device. The USPS and the manufacturer of the mail-sorting system, Northrop Grumman, claimed that the mail-sorting system utilized by the USPS is an independent creation. The issue in the case became the date on which the plaintiff conceived the invention and whether that date was earlier than the date on which the USPS’s manufacturer conceived the invention. The defendant was able to prove conception of the idea in July 2004. The plaintiff proceeded to waive attorney-client privilege and disclose correspondence with his attorney regarding applying for a patent for the mail-sorting device dated November 2003. After the disclosure by the plaintiff, the defendant submitted a motion to compel the plaintiff to turn over all other documents being withheld under the guise of attorney-client privilege. The court stated that the proper standard for compelling privileged information is “all other communications relating to the same subject matter.” The court was particularly concerned with the concept of fairness stating, “the aim is to prevent a party from disclosing communications supporting its position while simultaneously withholding communications that do not.” In this case, the subject matter was determined to be all documents regarding the date of plaintiff’s conception of his mail-sorter idea. The plaintiff sought to maintain privilege for numerous communications between himself and his attorney both before and after the date a patent was filed for. The court stated that the plaintiff must disclose any documents regarding conception of the mail-sorter regardless of the date on which the communications were created. The court specifically stated, “[the plaintiff’s] privilege waiver to apply to communications related to the date of conception, date of reduction to practice, and due diligence, generated both before and after the filing of the patent application.” The court did however create a distinction between communications regarding applying for the patent and emails regarding defending the patent. The court also held that the plaintiff has no obligation to produce documents and communications attendant to patent prosecutions relating to the other topics. Emails between the plaintiff and his attorney leading up to the prosecution of the patent were also deemed to be protected by privilege. It is imperative to consider the evidentiary value of all documents relating to the same subject matter before waiving attorney-client privilege. If you seek to admit certain documents regarding a certain subject matter covered by attorney-client privilege, all documents relating to the same subject matter must also be turned over to your opponent. Courts are concerned with notions of fairness and will generally not allow a party to selectively waive privilege in order to use it as a sword and a shield. Before waiving privilege, separate documents into distinctions of subject matter, do not make arbitrary distinctions between documents. Then weigh the potentially beneficial and potentially harmful value of all the documents relating to the subject matter in question. Once the value has been determined, only waive the privilege if, on the whole, the documents are clearly beneficial. 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 a legal intern 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
In January 2014, the Hon. Lawrence E. Kahn in the U.S. District Court for the Northern District of New York granted plaintiff Dataflow, Inc.’s motion for sanctions in a case regarding deleted email correspondence. Sanctions took the form of the often-case-ending adverse inference, with the judge reserving on the specific language of the adverse inference jury instruction until trial. Defendant Peerless Insurance Co. might not wait that long, as even the neophyte lawyer can tell when blood is in the water. Dataflow’s claim arose out of a discovery request for production of documents that “targeted, inter alia internal communications and investigations regarding Plaintiffs’ claim.” Dataflow, Inc., v. Peerless Ins. Co., No. 3:11-cv-1127 (LEK/DEP), 2014 WL 148685, *2 (N.D.N.Y. Jan. 13, 2014). When the defendant failed to produce any internal communications responsive to the document request, the plaintiffs tried again. After the plaintiffs submitted an even narrower request for production, the defendants still didn’t produce anything responsive. Perhaps smelling something fishy, Dataflow started taking depositions and asking questions about the internal communications at Peerless. The plaintiffs quickly learned that email was routinely used to communicate about claims. The emails that Dataflow already asked for. The emails that Dataflow was told didn’t exist. The plot thickens. Hon. David E. Peebles, the Magistrate Judge handling discovery in this matter filed a Report and Recommendation urging sanctions be granted and fees shifted. The District Court, reviewing Judge Peebles’s ruling de novo determined that the Magistrate got it right—and that sanctions are appropriate. The court analyzed the facts of the case under the spoliation framework set forth in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002): On a motion for sanctions due to spoliation, the moving party must show that: (1) the party having control of the evidence had an obligation to preserve it at the time it was destroyed; (2) that party had a culpable state of mind; and (3) the destroyed evidence was of a nature that a reasonable trier of fact could find that it would support the moving party’s claim or defense. Dataflow, at *2 (citing Residential Funding Corp, at 107). Here, the duty to preserve for an insurance party was triggered when a claim was submitted. As such, any internal communication regarding that claim is obviously supposed to be preserved. The culpable state of mind can be inferred by the gross negligence displayed by email deletion resulting from a “system change.” A “system change” that also conveniently “changed” the methods of preservation of documents related to paid and unpaid claims. Finally, since the plaintiff was able to prove that the contents of the internal email conversations likely would have supported the plaintiffs’ theory of the case, sanctions in the form of an adverse inference just make sense. Perhaps it’s time for Peerless to have a “system change” with regards to their general counsel. 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.
“Recycle,” “conserve,” “waste,” and “pollution” are terms that were implanted into the minds of each of us at a young age and are now they are being instilled into companies worldwide as a measure to reduce operational costs. Companies such as JPC Equestrian, Inc. have begun recycling and reusing “cleaned” electronic devices from former employees, which would normally not be an issue if companies had a company-wide server or cloud-based software that held all of the information stored within the device. However, since JPC Equestrian, Inc. does not have a company-wide server, once an employee leaves, the company has a procedure in place to “scub” the computer and reassign it to another without care for the electronic information within the device. In Kearney v. JPC Equestrian, Inc., Mark Kearney, a former employee, sued JPC Equestrian, Inc. (“JPC”) for the failure to produce emails relevant to the claim he is asserting. Kearney commenced this lawsuit against JPC when they wrongfully terminated his employment, and breached his sales agreements by either failing to pay him sales commissions or by paying reduced commissions that did not satisfy contractual obligations. Kearney through the discovery process received email documentation from numerous employees and executives dating back to 2005. The discovery submission included JPS turning over 250 pages of documents relevant to the parties and situations involved. However, Kearney requested information for "all relevant emails," which in his original discovery requests, were defined as "[a]ll emails that mention, or refer to the Plaintiff, however, marginally, in any way shape or form from 2002 through 2010." Kearney v. JPC Equestrian, Inc., 2014 U.S. Dist. LEXIS 153975, *5 (M.D. Pa. Oct. 30, 2014). Kearney was missing three years of discovery. Kearney only received documentation dating back to 2005 because the information dating back to 2002 did not exist or does not exist anymore and cannot be recovered. JPS claims that the information cannot be recovered because the computers that would have held that data were wiped clean and erased before the device was transitioned to another employee. JPS has found loopholes around document retention and the court agreed. The court held that JPS’ procedure of document retention was acceptable and the court has, “no basis to conclude that the defendants have withheld responsive documents, or that there is any basis to compel a further response regarding potentially relevant email communication.” Id. at *7. Unfortunately, this holding allows companies an avenue to discard potential and relevant information pertaining to potential litigation that otherwise would have been saved if not for the guise of recycling and employee cost saving. This holding should be reversed and JPS should be penalized for its failure to maintain adequate records for an appropriate period of time. The court should not excuse a company, no matter the size or market capitalization, for not maintaining the electronic information of employees who work within the company. Not only is that bad preservation practice, its poor business practice. Recycling and the protection of our planet is important but those ideals should not give rise to loopholes of common electronic document preservation practices, which are becoming as worldwide and important as protecting the planet itself. 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.
Parties requesting e-discovery speak up or forever be subject to possible cost-shifting. Generally, the responding party bears its own costs of complying with discovery requests; however, the rules of discovery allow a trial judge to shift the cost to the requesting party in certain circumstances. Cost-shifting does not even become a possibility unless there is first a showing that the electronically stored information (“ESI”) is inaccessible. However, if neither party submits to the Court that the ESI is accessible, then courts can presume it to be inaccessible. This should be especially concerning to the requesting party, who typically does not bear the burden to pay for such costs. In Zeller v. South Central Emergency Medical Services, Inc., Richard Zeller (“Employee”) filed an action against his former employer, South Central Emergency Medical Services (“Employer”) alleging an unlawful and retaliatory discharge under the Family Medical Leave Act (“FMLA”). The Employee was out of work pursuant to the FMLA for approximately a month. He alleged that, upon his return to work, the Employer did not restore him to his previous position and retaliated against him for using the FMLA. The Employer claimed that the Employee was fired for excessive absenteeism. The e-discovery issue in this case involved the allocation of costs to recover e-mails between the Employee and his doctors. In this matter, there was no formal motion for a cost-shifting protective order, rather the issue was raised by both parties in their submissions to the court on outstanding discovery issues. Typically, the rule is for cost-shifting to be possible, there must first be a showing of inaccessibility. Here, the court presumed that the parties agreed the information sought was inaccessible because neither party submitted that the ESI was accessible. Once the court presumed that the ESI was inaccessible, the court then analyzed whether discovery costs should be shifted by applying the seven-factor test from the Zubulake Court. In Zeller, the court held that some cost-shifting to the Employer, the requesting party, was appropriate. Although the ESI in Zeller was most likely inaccessible, parties requesting e-discovery can still learn a valuable lesson from this case. The requesting party should submit to the court that the ESI sought is accessible to avoid both a presumption of inaccessibility and the possibility of cost-shifting. Requesting parties should not leave it up to the producing party to bear the burden of showing that the ESI is inaccessible because the courts are now willing to presume this finding if neither party contends otherwise. 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. Want to read more articles like this? Sign up for our post notification newsletter, here.
When a party’s violation of discovery rules causes added legal expenses to its adversarial, courts appear to be very generous in approving fee applications. An application only needs to provide itemized ledger entries of attorney/paralegal hours with simple explanation of the relation of the corresponding work to the discovery violation. Courts are going to exercise broad discretion and place the burden on the violating party to show with particularity why each logged hour is unreasonable. It appears that courts will only disprove hours that are obviously excessive or clearly redundant on the face of the ledger. In Tangible Value v. Town Sports International, Inc., Tangible Value (“TV”) sued the defendants for not paying for services provided according to an oral contract, which the defendants denied. The bulk of its claim was reflected in an invoice stating an unpaid balance of about $800,000. Upon discovery request by the defendant, TV, refused to produce metadata and other documents related to the invoice. The court then ordered such production. During the course of the discovery, TV repeatedly provided insufficient documentation as requested and the defendant had to examine the documents and determine their sufficiency, converse with counsels of TV, and initiate court conferences multiple times to compel additional documents. It was later discovered that the invoice was not real but was created by TV after the fact to justify a damage claim. At that point, the defendant filed a motion for contempt and sanction. The court granted the motion. The defendants then filed their fee application seeking to recoup legal expenses as a result of TV’s discovery violation, which totaled 423.2 hours at rates varying between $180-$562 for attorneys (associates and partners) and $95-$153 for paralegals. The Magistrate Judge of the District Court for the District of New Jersey generously awarded the defendants 384 hours. Several observations can be made on how the court dealt with various legal charges. First, court deemed all charging rates reasonable by comparing the proposed rates to the rates approved previously by the court in other matters. Second, the court automatically approved any hours that were not objected to by TV. Third, once specific objections of hours were made, the court used a great deal of discretion and required particular showing why the hours objected were unreasonable. Fourth, the court approved internal attorney conferences without much hesitation. Fifth, hours logged for preparation for court conference were approved 100%. Sixth, the court was only willing to consider obviously excessive or unnecessarily redundant work as unreasonable. Seventh and most astonishingly, the court was extremely generous in allowing hours associated with legal research and drafting of Motion for Sanction and Fee application, approving a whopping 250 hours, or over 6 weeks’ worth of work for a single attorney! For my fellow law students, that is half of one entire law school semester. Thus, for executives and legal counsels in similar situations, make a good faith effort to obey the discovery request. Otherwise, the other side will surely take full advantage of the generosity of the court and obtain a humongous reimbursement in legal fees. For easy reference, the table below summarizes the court’s disposition of all hours included in defendants’ fee application in the Tangible Value case. Note: DP stands for Document Production. Fee Items Hours Applied Court Comments Reduction of Hours by Court Assessment of deficiencies in initial DP 8.3 none Communications with TV Re deficiencies in initial DP 9.8 2 Court conference/preparation Re deficiencies in initial DP 1.8 none Communications with TV Re deficiencies in its 2nd DP 5.8 none Court conference/preparation Re deficiencies in 2nd DP 3.1 none Investigation of the invoice and assessment of documents related to the derivation of the invoice 19.2 Multiple paralegals on same task. 4.9 Communications with TV Re deficiencies in its DP concerning the invoice 10.7 Two entries on similar work. 4.4 Court conference Re the deficiencies in DP concerning the invoice 0.8 none Assessment of deficiencies in the 3rd DP 2.2 none Communications with TV Re the deficiencies in 3rd DP 2.4 none Assessment of the 4th DP 1.5 none Assessment of the 5th DP 7 Ledger is unclear. 0.5 Communications with TV Re deficiencies in the 5th DP 1 none Assessment of 6th DP and accuracy of TV certifications 5.9 none Communications Re deficiencies in 6th DP and accuracy of certifications 7.7 none Communication with TV Re deficiencies in 7th DP 1.3 none Communication with TV Re deficiencies in 8th DP 0.5 none Letter to Court summarizing DP deficiencies and seeking permission to move to compel 3.9 none Motion to Compel, including drafting, legal research. 23.5 none Oral argument Re Motion to Compel and Status Conference with court. 4.4 none Revision of Scheduling Orders throughout litigation due to discovery delays 4.2 none Letter request for permission to move for sanction, including review and legal research 9.8 Two attorneys repeated same task. 2 Review of TV response to the letter above 8.2 none Motion for Sanction, including legal research and drafting 80.8 none Review of TV response for the Motion for Sanction, preparation of reply, and review of Magistrate Report and Recommendations. 28.1 The 4 hours for reviewing Court Report excessive. 1 Fee application including review of records and case law research 89.9 Excessive only by 12.2 hours 12.2 Review of TV’s opposition to the Fee Application and draft reply 77.7 Excessive only by 12.2 hours 12.2 Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a4th year evening student at Seton Hall University School of Law focusing on patent law. 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Following the recent ten year anniversary of the verdict in the Zubulake case (and the series of published court opinions preceding the verdict) that laid the groundwork for future eDiscovery cases, Ms. Zubulake took time from her busy schedule to meet with Seton Hall Law students. Ms. Zubulake discussed her book that presents a first-hand account of her harrowing experience that culminated in a historic outcome—and in the process forever changed the United States litigation landscape. Ms. Zubulake imparted her knowledge and experience from her three year lawsuit with a group of Seton Hall Law School students enrolled in Adjunct Law Professor Fernando M. Pinguelo’s eDiscovery: Where Technology Meets the Law course. Each student asked thoughtful and pointed questions concerning many of the experiences Ms. Zubulake revealed in her book. One of the central points Ms. Zubulake focused on was the importance of organization. She described the daunting task of reviewing, organizing, and searching through massive amounts of data, including emails and other evidence produced to her and her legal team as searching for the proverbial “needle in the haystack.” This was during a time when technology assisted review and other advancements in data review platforms were virtually nonexistent. To overcome this challenge, Ms. Zubulake believed organizing the evidence, including paper and electronic documents, was critical to preparing for depositions, drafting motion papers, preparing for trial, and presenting a clear timeline and sequence of events to the jury. Ms. Zubulake shared both her experiences that led to her decision to file suit alleging gender discrimination and retaliation and the fallout of her litigation, which carried over to her personal life. Ms. Zubulake confessed that she had been aware of allegations of gender discrimination in the financial industry early on in her career and acknowledged that she often felt that she had to work twice as hard as her male counterparts. However, that position never bothered Ms. Zubulake until the situation became uniquely personal, leading her to conclude that something needed to be done. Once she felt her personal career was being compromised, Ms. Zubulake admited that she “couldn’t in good faith walk away from it.” While her decision to act was not an easy one to make at the time, she thought it was the right one—particularly because she raised her concerns through internal corporate channels that she had been led to believe were designed to address delicate, intra-personnel matters discretely and effectively. Ms. Zubulake’s book is a personal account of a long, grueling litigation process that resulted in her finally getting vindication and justice. She speaks of the process and admits that it was not easy. Ms. Zubulake knew that she served as a good, strong candidate to not only take a stand against what had happened to her personally, but also to challenge what had been in many respects an institutional problem. Ms. Zubulake’s case did not serve merely to right a perceived wrong in the context of gender discrimination in the work place, but it also sparked the establishment of several groundbreaking precedents regarding electronic discovery. Her book is not only an account of her determination, but also her acknowledgement that she never imagined her case would have had such an impact on a legal process that was virtually nonexistent at the time. Ten years later, we continue to see the impact and the relevancy of the Zubulake decisions. To learn more about Laura Zubulake and Zubulake’s eDiscovery: The Untold Story of My Quest for Justice, visit: http://www.laurazubulake.com/. Fernando M. Pinguelo, Esq., is a U.S.-based trial lawyer and devotes his practice to complex lawsuits with an emphasis on business disputes, cyber security, media and employment matters. Kristen Tierney, a Chief Blog Correspondent for eLessons Learned, is a History and Political Science double-major at at Rutgers University in New Brunswick (Class of 2016). Do you have any feedback, thoughts, reactions or comments concerning this topic? Feel free to leave a comment below and follow the twitter accounts @ellblog_dot_com, @CyberPinguelo, and @eWHW_Blog. To learn more about electronic discovery and technology’s impact on lawsuits and corporate governance, visit eLessons Learned – Where Law, Technology, and Human Error Collide and register to receive timely updates. If you’re also interested in data privacy and security, visit eLLblog’s companion blog – eWhiteHouse Watch – Where Technology, Politics, and Privacy Collide (http://ewhwblog.com).
On March 10, 20108, Marc Liebeskind began working at Rutgers Facilities Business Administration Department. By March 28 of that year, Liebeskind was terminated for lacking the basic skill set needed to perform his job in addition to having a poor attitude while on the job. Liebeskind’s supervisors had suspected he was spending an unreasonable amount of time on non-work related activities on his work computer. Having doubts about Liebeskind’s work performance, his supervisors reviewed the browsing history on Liebeskind’s computer by using an application called IEHistoryView. It is important to note that this search only entailed browsing history, and there is no evidence that Liebeskind’s supervisors were granted any access to his personal or password-protected information and accounts. After his termination, Liebeskind filed suit against Rutgers University and his supervisors, claiming invasion of privacy, among other claims. On appeal, the New Jersey Superior Court Appellate Division affirmed the lower court’s ruling, which ruling struck down all claims that Liebeskind’s privacy was violated as a result of his supervisors’ investigating the browser history on his computer. The appellate court referenced the New Jersey Supreme Court’s Stengart ruling, which had set the precedent for an employer’s right to monitor employee Internet activity and usage. Closely followed in previous eLessons Learned posts, the 2010 Stengart ruling held that an employee’s email communication with her attorney, using a company-issued computer, but via a personal, password-protected email account was held to be protected by the attorney-client privilege. However, the court’s decision to uphold Stengart’s privacy was not intended to forbid employers from monitoring employees’ actions on company-issued computers or devices in the future. In Stengart, New Jersey’s highest court stated: “Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies.” As noted in Liebeskind, Rutgers’ “Acceptable Use Policy for Computing and Information Technology Resources” was in effect during the time of Liebeskind’s employment. This policy expressly stated that an employee’s privacy “may be superseded by the University’s requirement to protect the integrity of information technology resources, the rights of all users and the property of the University.” Additionally, Rutgers University “[r]eserve[d] the right to examine material stored on or transmitted through its facilities.” Unlike the findings in Stengart, the court established that Liebeskind did not have a “reasonable expectation of privacy.” In addition, the court agreed that Rutgers had a “legitimate interest in monitoring and regulating plaintiff’s workplace computer.” All companies can learn from this case and the policies in place at Rutgers that protected its right to monitor and search an employee’s computer. One of the most important lessons to be learned here is the need for a written internet usage policy. At the very least, these written policies should mandate that employees are expected to use the Internet and their work issued computers for work related activities only. Additionally, the possible disciplinary actions for any violation of this policy should be made available to employees. As seen in in this case, the existence of an internet usage policy and the reserved right of a company to monitor its employee’s Internet activity is the key to eliminate an employee’s reasonable expectation of privacy.
Many of you have been there. After months of discovery and the unavoidable disputes that accompany the process, you still need more. Do not make the same mistake that this lawyer made. In Herron v. Fannie Mae, the plaintiff sued the defendant Fannie Mae for alleged illegal termination. The plaintiff asserted that she was fired because she complained about the management and decisions, among other things. Throughout the proceedings of the case, there was a record filled with discovery disputes and discovery deadline extensions. The discovery process was dragging along until United States District Judge Rosemary M. Collyer put an end to all discovery in a single order titled, “ORDER ON ONE MILLIONTH DISCOVERY DISPUTE.” While there was not actually a million discovery disputes, the judge had become so fed up with the parties and their arguments that she was forced to take action. “Much as the Court admires the advocacy of counsel, it is exhausted with these disputes. Contrary to its usual practice, the Court will rule immediately.” The straw that broke the proverbial camel’s back was two separate requests from the plaintiff. Instead of seeking specific and narrow discovery, the plaintiff asked for “highly overbroad” depositions and document requests. For example, the plaintiff asked for the entirety of “confidential internal presentations and deliberations on executive bonuses by the Board of Directors for all of Fannie Mae’s executive staff for two years.” This request, remember, is coming from a plaintiff that is seeking an illegal termination claim. Judge Collyer stated that “these topics could have, and should have, been laser focused. They were not and will not be enforced.” Due to the overbroad nature of one parties’ requests, all future discovery for both parties was terminated. The major practice lesson that comes from this is two-fold. First, when seeking additional discovery after months of disputes, stay narrow and focused. Taking the extra time to efficiently state exactly what you are looking for could keep discovery on track (think pleading specificity standards). Plus, the judge will appreciate the candor and targeted nature of the request. Second, make sure that the discovery you are requesting is on point with what your case issue will allow. As seen in Herron, reaching for too much discovery that may be beyond your cause of action is a sure fire way to anger a judge. Want to read more articles like this? Sign up for our post notification newsletter, here.
We have entered the age of information! Every conversation, e-mail, text message, attachment, voicemail, and other electronic data are being stored all day, every day. These types of electronically stored information (a.k.a. “ESI”) are regularly used during litigation. So why is there a problem collecting information for trial? Lawyers need to search through these massive amounts of ESI in order to provide the materials to the opposing party before trial. This process is known as eDiscovery, or electronic discovery, and it has raised a number of issues regarding who, what, where, when, why, and how ESI is produced. The issue discussed here is what defines the scope of eDiscovery. In ChenOster v. Goldman, Sachs & Co., the court made it clear that the scope of discovery, whether electronic or not, is still defined by traditional discovery requests and demands. However, what brought forward this conclusion? Traditionally, the process of discovery is the period when lawyers exchange requests and demands for information, documents, and other materials that may be used in the case. Generally, this can be broken down into three steps: (1) Requesting party will make a discovery request; (2) the opposing party will use any means she deems appropriate to find the materials; and (3) the opposing party will respond to the request in the form of producing the materials or an objection. However, in Chen-Oster, the parties deviated slightly from this traditional process. Here, the requesting party, the plaintiffs, made traditional discovery requests for ESI. Then the plaintiffs negotiated with the opposing party, the defendants, in order to determine what search terms would be used to filter through the enormous amounts of ESI available. Now, why is this different from a traditional discovery process? This is different because both parties collaborated to determine how the ESI requested would be located. The issue presented in Chen-Oster begins upon production of the ESI by the defendants. The defendants only produced the ESI they deemed to be relevant to the discovery requests set forth by the plaintiffs. However, the plaintiffs intended to collect all ESI produced by the search terms they agreed upon. This brings us back to the main question: what defines the scope of eDiscovery? It is either all ESI located under the agreed upon search terms; or it is only ESI located under the search terms that are relevant to the original discovery request. According to Chen-Oster, an agreement to use specific search terms or discovery protocol does not override discovery demands and requests. In other words, search terms used to filter through electronic data do not define the scope of discovery. The scope of discovery is determined by the discovery requests rendered. Victoria O’Connor Blazeski 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.
We all have personal social media pages. No matter who you are, you likely have an online presence in the form of a profile on one of the many sites available on the Internet. One who simply forgets about a newly created social profile can be the subject of worldwide scrutiny—the page is available for all to see. Who cares, right? Most likely, you will not have anything important on there. However, what happens when you are facing a criminal charge and the prosecution uses your social media profile in order to prove your guilt? Meet Aliaksandr Zhyltsou, a Ukrainian native living his life in Brooklyn, New York. All was well until Zhyltsou allegedly furnished Vladyslav Timku with a forged birth certificate, which claimed that Timku was the father of a baby daughter. Timku, as a cooperating witness for the government, admitted that he had sought the forged birth certificate in order to skirt his responsibility to military service in his native Ukraine. During the trail, Timku offered testimony that Zhyltsou had sent him the forged document from the gmail account “firstname.lastname@example.org.” However, the prosecution was unable to offer any other evidence other than Timku’s testimony that tied Zhyltsou to this e-mail address. Therefore, more evidence was necessary in order to corroborate Timku’s claim. Special Agent Cline, from the State Department’s Diplomatic Security Service, provided the prosecution with the link between the e-mail address and the VK.com profile (the Russian equivalent of Facebook). Cline asserted that this profile on VK belonged to the defendant and was linked to the very same gmail account used to send the forged document to Timku. To prosecutors, it seemed like a slam-dunk: here was the evidence needed to corroborate Timku’s testimony and sufficiently tie Zhyltsou to the Gmail account in question. Everything seemed in order; the profile contained a picture of the defendant, his work experience, and most importantly the “azmadeuz” Gmail account. Furthermore, the district court agreed that this was the Zhyltsou’s profile page and therefore the prosecution could use it as evidence to establish the link between the defendant and the gmail account. However, one pesky evidence rule could ruin it all in an instant, Federal Rule 901. Simply, Federal Rule 901 requires that in order to “authenticate or identify” a piece of evidence, a proponent asserting any form of evidence “must produce evidence sufficient to support a finding that the evidence is what the proponent claims it is.” Therefore, in the instant case, the prosecution had the duty to prove that this VK profile page belonged to Zhyltsou alone and was not created by any other person. However, in his haste to provide this vital piece of evidence, the prosecutor failed to adhere to this rule and the case was ultimately overturned on appeal. This case is a prime example of the need for all lawyers to have a firm understanding of electronic discovery. While it may be easy to access social media profiles and the like in order to obtain evidence against an opponent, that is only part of the process. It must be proven that the profile actually belongs to your opponent before you may use it against them as evidence in a court of law. In today’s world, it is not difficult to create fake profiles on such sites and therefore the court was correct in overturning this ruling. However, it is not outside of the realm of possibility that the prosecution could have tied Zhyltsou to this VK profile, it would have simply taken a little more digging and investigative work. 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. Presently, A.S. clerks for the Monmouth County Office of the Public Defender. Want to read more articles like this? Sign up for our post notification newsletter, here.