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.

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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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How Can You Check if Your Insurance Customer is Faking an Injury? Get Evidence Before Requesting Access to Their Social Media!

A growing trend in insurance disputes is a demand for insurers to have access to the claimant’s social media content. In January 2013, the District of Montana had to consider whether to compel a woman to produce all of her social media photos. The court did not grant this request and the decision serves as a good example of what is, or is not, an effective way to request this information. One plaintiff claimed she injured her head, neck, and back in an automobile accident when the vehicle she was driving was struck from behind. Her mother also suffered injuries in the accident. At the time of the accident, they were insured under an automobile liability policy issued by the defendant. The plaintiffs made a claim for uninsured motorist benefits under the policy. The defendant moved under Fed.R.Civ.P. 37 for an order compelling the plaintiffs to respond to discovery requests for the production of their social network site content. The defendant’s rationale for the request was the plaintiffs alleged a “host of physical and emotional injuries.” In respect to the mother, Defendant argued “there is no good reason for her to shield information that might shed light on her or her daughter's injuries.” The request stated as follows: Request for Production No. 18: Please produce a full printout of all of Plaintiff [driver]’s social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from August 26, 2008 to the present. Request for Production No. 19: Please produce a full printout of all of Plaintiff’s [mother's] so-cial media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and Meet-Me from August 26, 2008 to the present. As you can imagine, the court felt these requests were overbroad. It is well settled that social media content is discoverable, but the requestor must make a threshold showing that publicly available information on those sites undermines the plaintiff’s claims. The defendant did not come forward with any evidence that the content of either of the plaintiffs' public postings in any way undermined their claims in this case. Absent such a showing, the defendant was not entitled to delve carte blanche into any of the nonpublic sections of plaintiffs' social networking accounts, let alone all of them. This case should serve as a lesson to other insurance litigants. You should only request access to social media accounts if you can make a threshold showing that the social media content will be relevant and hold admissible evidence. Otherwise you will rightly be admonished for undergoing a “fishing expedition” and your requests will be promptly denied.

Preserve Immediately or be Sanctioned!

In this case, the plaintiff, an inmate at Rikers Island, brought a motion for spoliation of evidence and alleged the defendants breached their duty to preserve evidence. The evidence in question is video footage relevant to the litigation regarding the assault on the plaintiff which occurred on May 24, 2011, by other prison inmates in a holding cell at the Bronx Criminal Courthouse. The defendants claim that they do not have a duty to preserve the surveillance footage because by the time they were given notice, the footage had been deleted. The defense states that even if they had a duty to preserve, they met this obligation by saving eight minutes of surveillance that they deemed to be relevant. On the day of the assault, the holding cell in which the plaintiff was placed in with approximately sixteen to seventeen other inmates was under twenty-four hour video surveillance.  That same day, Jacqueline Brantley, the former Assistant Deputy Warden Executive Officer at the Bronx Criminal Courthouse, reviewed the video footage to determine the course of events specifically for a period of three hours.  Brantley was the only person to view the three hours of footage and therefore she was the only one who could testify in court regarding this evidence. The three hours of video footage is extremely relevant to the case. The footage included evidence of not only the plaintiff’s injuries, but also how the Department of Corrections protected the inmates and how they responded to the incident. The tapes also show the presence and identity of possible witnesses to the assault and help create a visual timeline of events in the holding cell. The Southern District of New York stated that the defendants should have known within a week of the assault that the surveillance footage would be relevant to a future lawsuit. While the Department of Corrections destroyed the footage pursuant to the Department’s automatic video recycling procedures, prior to the filing of the claim by Taylor, the Department did manage to save eight minutes of footage. This begs the following question to be asked:  Why did the department not preserve the entire three hours of footage? As a result, the plaintiff in this case sought sanctions for spoliation of evidence with the deletion of the footage. A party seeking sanctions for the spoliation of evidence must establish the following three elements: The party having control over the evidence had an obligation to preserve it at the time it was destroyed; The records were destroyed with a culpable state of mind; and The destroyed evidence was relevant to the party’s claim… such that a reasonable trier of fact could find that it would support that claim. Residential Funding Corp. v. DeGeorge  Fin. Corp., 306 F.3d 99, 107 (2d. Cir. 2002). If the moving party can establish these three elements, then the court has the ability to impose sanctions under Rule 37 of the Federal Rules of Civil Procedure. The defendants here should have anticipated that the plaintiff would file a lawsuit against the Department for its failure for protect the plaintiff in the holding cell. Therefore, the defendants should have reasonably known that any evidence depicting the plaintiff’s treatment in the holding cell would be relevant to the litigation. The obligation to preserve the video footage in this case attached at the time of the assault due to its relevance. The defendants should have known that the entire three hours of footage would be relevant and that two four minute video clips would be insufficient. Since the entire footage has been destroyed, the defendants breached their preservation duty. The destruction of evidence by the defendants was done in a culpable state of mind and destroyed knowingly. Therefore, the defendants were negligent in allowing the footage to be deleted. However, the defendants were not grossly negligent in their failure to preserve, as no relevant evidence here has been claimed to have been destroyed after the plaintiff filed his Notice of Claim, approximately sixty-five days after the assault occurred. Additionally, the destroyed evidence would have been favorable and relevant to the plaintiff’s claims and defenses in this case. This evidence would have shown the three hour period of time the plaintiff was left injured in the holding cell as well as the failure of the Corrections Officers to protect him and remove him from the cell when he was covered in blood after the assault. The Court found that for these reasons the destruction of evidence prejudiced the plaintiff. Therefore, the following sanctions were ordered by the court: 1) the preclusion of Brantley from testifying about what she saw when she reviewed the deleted footage; 2) the use of an adverse inference jury instruction; and 3) the award of attorney’s fees and costs to the plaintiff. To avoid having a similar outcome, potential defendants should immediately preserve any relevant evidence in matters that they know or should reasonably know will give rise to litigation. Jennifer Whritenour received her B.S. in Political Science and History in 2011 from the University of Scranton. She is received her J.D. from Seton Hall University School of Law in May 2014. 

Court Denies Motion to Compel Forensic Computer Examination Based on Proportionality Grounds

A common problem in e-Discovery is what to do when your adversary is withholding relevant information.  An even worse problem is when you know your adversary is withholding relevant information, but you are not precisely certain what that information is.  This was the problem for the defendant in NOLA Spice Designs, LLC v. Haydel Enterprises, Inc. who sought—but was ultimately denied—a forensic examination of the plaintiff’s computers. In NOLA Spice Designs, a trademark infringement case, the defendant filed a motion to compel the plaintiff to submit its computers to forensic examinations.[1]  The plaintiff challenged the motion by arguing that the forensic examinations failed the proportionality requirement of Federal Rule of Civil Procedure 26(b)(2).  This rule prevents a party from requesting discovery when “the burden or expense of the proposed discovery outweighs its likely benefit.”  In the context of forensic computer examinations, the court explained such an examination will not be permitted when the request is overly broad and the connection between the computer and claims are “unduly vague or unsubstantiated in nature.”  Although the court noted that forensic computer examinations are not uncommon in civil discovery, the court clarified that a mere suspicion that your adversary is dishonestly withholding information is an insufficient basis to order a forensic computer examination. The defendant in NOLA Spice Designs requested the forensic computer examination on the basis that it “has good reasons to believe that something in Plaintiff’s statements is not true” and “that is has suspected all along that its opponents have records that they refuse to produce.”  The court characterized the defendant’s reasons as the precise type of skepticism and unwarranted suspicion of dishonesty that are insufficient to warrant an invasive computer forensic examination. Moving forward, litigants should be mindful that courts may be sensitive to confidentiality and privacy concerns when overly broad discovery is requested.  Although electronic discovery permits litigants to exchange massive amount of information, that exchange is still subject to the traditional rules of discovery, such as proportionality.  In order to combat the hurdle of proportionality, a party who is suspicious that an opponent is withholding information should limit its discovery requests to the specific information that is suspected of being withheld.[2]  If the requesting party obtains some information, then it will at least have a reasonable basis to proceed with broader discovery requests because the party can prove to the court that the opposing party has not been forthright.  This puts the requesting party in a far greater position than merely seeking an intrusive computer forensic examination with no basis other than mere suspicion of dishonest activity. Helvidius Priscus, a Seton Hall University School of Law graduate (class of 2014), served on the executive board of the Seton Hall Law Review and was a member of the Interscholastic Moot Court Board.  Helvidius now clerks for a Justice on the Supreme Court of New Jersey.  [1] “Computer forensics is the practice of collecting, analyzing and reporting on digital information in a way that is legally admissible.”  Forensic ctrl, Introduction to Computer Forensics, http://forensiccontrol.com/resources/beginners-guide-computer-forensics/ (last visited Feb. 12, 2014). [2] Of course, it is difficult to ask for something if you are not sure what exactly you are missing.  Nonetheless, the court in NOLA Spice Designs made clear that asking for everything is not the way to go.  Starting with small and specific discovery requests (even if they are shots in the dark) may be the better choice because a court is unlikely to find that such requests fail the proportionality requirement.

Heavy Sanctions Can Be Levied Against Litigants Sitting on Discovery Information

Although this case does not deal directly with e-discovery, the ruling can have major e-discovery ramifications. Skipping to the end of this very long and complicated decision in Flinthill, the Judge’s conclusion was that the plaintiff in this case was trying to exact revenge on those she felt had wronged her in a messy divorce proceeding. For our purposes, however, the plaintiff and her counsel should have reviewed the discovery they got before bringing a lawsuit and claiming they never got that same discovery. A condensed version of this soap-opera case is as follows: Plaintiff filed for divorce from her husband (Wagner) in 2005, in aMarylandcourt.  He was a minority interest stockholder in the company “Spacelink International LLC.” In 1998, “Flinthill Trust” was established to receive the payments for the disbursements of this stock interest. Spacelink was sold in 2005, which left Wagner with around $13 million. $10 million of these funds were evenly divided between Plaintiff and her husband on September 1, 2005. The Plaintiff then filed to freeze Wagner’s interests. TheFairfaxCountycourt issued three orders:  1) prohibiting the trustee of the Flinthill trust from transferring trust assets for at least 60 days; 2) to provide an accounting of all the trust’s assets; and 3) prohibiting any further distribution of funds unless otherwise agreed upon. A stipulation was agreed upon and signed by both parties agreeing to Wagner’s providing two separate accountings of the trust’s comings and goings. Both of those accountings were dutifully made. In addition, a large amount of financial material was exchanged during discovery leading up to a hearing in May of 2006. During that time, Plaintiff did not make any requests to compel discovery, nor did she claim that any of theFairfaxcourt orders were not complied with. The record showed that Wagner and his lawyers repeatedly invited the plaintiff and her lawyers to meet with the trustee to go over the finances of the trust to make sure everything was kosher. Instead of taking them up on their invitation, she brought sixteen months-worth of litigation, which was ultimately deemed by the court to be frivolous and sanction-worthy. The four claims that the plaintiff brought were: 1) Breach of Contract (against Wagner and his people); 2) Breach of Fiduciary Duty (against the trustee); 3) Conspiracy (against various individuals); and 4) Conversion (also against various people). The claim that we are going to focus on, as it deals directly with discovery, is Count 1. In it, she alleged that Wagner breached the stipulation by “frustrating the accounting of trust assets . . . .” Defendants argued that there were four volumes that were transferred to Plaintiff that fully included all of the proper accounting information. The plaintiff’s lawyer claimed that they needed to get a report that was “based on generally accepted accounting principles, and not a compilation of documents,” and the failure to condense those documents constituted a breach of contract. The problem was that the plaintiff’s attorney clearly admitted to not reading the accounting documents that were provided to him, and to not bothering to read any of the ten to thirty boxes of materials relating to the trust that were in the plaintiff’s home. The court took particular offense to this, admonishing “how do you know you are missing something if you do not bother to look at what you have?” Curiously, Plaintiff’s attorney was unable to specifically identify, even two years later, any gaps in the documents that he was litigating about. The court made it clear that the plaintiff and her lawyer were responsible to review the documents already in their possession. If they lack the particular expertise required to do such a review, they were to hire an expert who was capable of the job. The defendants then went on to request for sanctions to be levied against both the plaintiff and her attorney for either willfully or negligently conducting a reasonable inquiry. Additionally, they could not have reasonably believed that this breach of contract suit was grounded in either fact or law. The court then carefully went through the other 3 claims by the plaintiff, and found that they were equal in their egregiousness for either outright lying to the court or failing to reasonably base their case in law. In the end, the court sanctioned the plaintiff and her attorney to the tune of $884,627.26 to cover the defendant’s attorney costs and witness fees. This ruling can have some serious ramifications for plaintiffs in cases with e-discovery. Much discovery material these days is in the form of Electronically Stored Information (ESI).  ESI can be particularly volume-heavy, and, therefore, costly to thoroughly review. The information that can be stored on one memory stick is vastly larger than the 10-30 boxes of papers discussed in this case.  Still, the court held that it was the responsibility of the requesting party to review the information they receive. If they can’t, they need to hire someone who can.  By no means should that party bring a law suit claiming they didn’t get that information.  It could end up being very costly for them. Akiva Shepard received his J.D. from Seton Hall University School of Law in 2014. Akiva has worked for a New York State Supreme Court Judge in Kings County and for a NJ real estate firm.  

Judge to Parties: “Work It Out Yourselves!”

In this case, Plaintiff AMEC Environment and Infrastructure, Inc. (“AMEC”) sued six former employees and Geosyntec Consultants Inc. (“Geosyntec”) after AMEC employees went to work for Geosyntec. AMEC alleges that defendants took confidential and/or trade secret information and competed unfairly with AMEC’s existing and prospective business relationships. The claims include unauthorized access of computer information, misappropriations of trade secrets, breach of contract, and interference with AMEC’s contractual relations with its employees and clients, breach of fiduciary duties, interference with prospective economic advantage, and unfair business practices. In this particular dispute, the parties each complained about the sufficiency of discovery responses made to each other. Geosyntec disputed to the sufficiency of AMEC’s responses to interrogatory questions designed to shine light on why AMEC’s trademark designations are trade secrets that deserve protection. AMEC’s disputed over whether Geosyntec should have provided information about its solicitation of AMEC employees it did not hire, whether it should provide oral, as well as written solicitations of employees it did hire, and whether its search terms for e-discovery were sufficient. To resolve these issue, the Court ordered the parties to each designate five trade secrets for AMEC to answer before mediation. Furthermore, the Court ordered answers to interrogatories to be provided on a schedule pegged to the end of fact discovery, as well as mediation. Finally, the Court ordered that parties memorialize their agreement on the record to confer about other e-discovery issues. In regards to the e-discovery issues, Plaintiffs contended that defendant Geosyntec left out obvious custodians and search terms in their discovery. Defendant counters that its searches were too broad in that they resulted a hit rate of 8%. Even at that rate, Geosyntec stated it already produced 200,000 documents and therefore needed to narrow the search terms. Ultimately, Judge Beeler reserved a decision. The judge refused to intervene in the dispute, believing that the parties know their discovery better and are better suited to manage it on their own. She noted that the parties agreed to meet and confer on their own to resolve and dispute. Judge Beeler also noted in regards to the breadth of email searches, that overly broad searches are just “useless ways of getting at the smoking gun emails.” Salim received his B.A. in Applied Communications, with a minor in Legal Studies, from Monmouth University. He received his J.D. from Seton Hall University School of Law in 2014. Salim’s past experiences include interning for a personal injury law firm prior to attending law school, as well as judicial internships in the Civil and Family Divisions. Currently, Salim is taking part in the Immigrants’ Rights/International Human Rights Clinic at Seton Hall Law.

Colorado Supreme Court Remands Finding That Trial Court Didn’t Do Their Job By Failing To Actively Manage Discovery

How involved does a district court have to be in discovery issues?  This is the main issue that the Colorado Supreme Court tackled in this case.  The Court drew a firm line and interpretation on one of the state’s discovery rules and remanded to the district dourt so they could follow it. The plaintiff, DCP Midstream, LP brought a case for eleven breach of contract (among other claims) against the defendant, Anadarko Petroleum Corporation.   The two companies transport, gather, and process natural gas in Northeastern Colorado.  DCP Midstream transported the gas from wells and took them to be processed and sold.  DCP Midstream had contractual relationships, known as "gas purchase, gathering, and processing agreements" with a number of companies to carry this out. One of the companies that DCP Midstream did regular business with was Kerr-McGee Oil, which was acquired by Anadarko Petroleum.  It was then, according to the plaintiff, when the relationship soured.   DCP claims that Anadarko told Kerr-McGee to “transport and process natural gas in violation of DCP's contractual rights” and brought suit accordingly. DCP’s claims regarded eleven contracts specifically which covered about 900 wells.  DCP asked for document production using 58 requests.   These requests asked for Anadarko’s “complete contract file” for the thousands of wells that it operates as well as the title opinions for them.  Anadarko objected to many of these requests claiming that they were not relevant to the claims contained in the complaint and as such, outside the scope of discovery under Colorado Rules of Civil Procedure 26(b)(1).  Further, Anadarko claimed that the opinions asked for were privileged attorney-client communications but that claim won’t be addressed here. The trial court did not hear argument regarding Anadarko’s objections and merely granted DCP’s motion to compel.  Their written order read, “DCP was entitled to discovery that is or may become relevant and, because DCP's "breach [of contract] claim may expand and may ultimately encompass thousands of wells," DCP was entitled to discovery that may lead to more specific allegations…”” Anadarko petitioned the Supreme Court of Colorado for review. The Supreme Court found jurisdiction to take the case and discussed extensively the state rules, how the scope of discovery should be determined, and the role of the Court in all of it.  Specifically, the Court talked about the above-cited 26(b)(1) which granted parties as a matter of right, the ability to ask for discovery for anything that is not privileged that is “relevant to the claim or defense of any party.”  For good cause, the rule allows the court to permit a party more expansive discovery rights into "any matter relevant to the subject matter involved in the action." The distinction between the discovery allowed as a matter of right and that to be allowed for good cause was troubling to the Court.  The Court said that there was no easily explainable difference between what a “claim or defense” is versus what is “subject matter.”  Instead, the Court pointed to the advisory committee notes on the rule which advocated looking at the rule more practically.  The notes suggested that the Courts, when there is a discovery objection, determine the scope of discovery and tailor it to the “reasonable needs of the action.”  It is this approach that the Court adopted for the state of Colorado. The Court (and the state rules that it pointed to) also made it inescapably clear how vital the role of the trial court is in the discovery process.  Active judicial management is needed to decide scope of discovery questions in light of the action calls for and what is reasonable.  The trial court, in this case, did not make any findings on that question and instead just put through an order without any tailoring at all. The Supreme Court remanded the case to the trial court so they may make findings pursuant to their approach to the rule. Trial court judges of Colorado beware!  If you don’t take an active role in deciding discovery objections, the Supreme Court will just remand and you will have to look at it again, anyway.  Isn’t it just easier to manage your responsibility the first time? Julie will receive her J.D. from Seton Hall University School of Law, where she is serving as President of the Family Law Society and was a Student Attorney for the Center for Social Justice’s Family Law Clinic, in 2014. Prior to law school, she was a 2008 magna cum laude graduate of Syracuse University, where she earned a B.A. in History and a minor in Religion and Society. After law school, Julie will serve as a law clerk to a judge of the Superior Court of New Jersey.

Tale of the Tape: Lax Litigation Hold Leads to Spoliation Sanctions… Again

Once bitten, twice shy.  The classic idiom stands for the general proposition that when an individual is hurt  by someone or something, they tend to avoid that person or situation in the future.  Well, it looks like the defendant in Hart v. Dillon Companies did not learn its lesson as it will face spoliation sanctions for the second time in two years. In 2011, the defendant’s bad faith destruction of company videotapes led to an adverse inference ruling.  E.E.O.C. v. Dillon Companies, Inc., F. Supp. 2d 1141 (D.Colo. 2011).  Now the company faces additional spoliation sanctions, once again for accidentally erasing pertinent recorded evidence. The plaintiff’s 21 years of employment at the defendant’s grocery store came to an end when it was alleged that she had been abusing her power as the store’s bookkeeper by paying herself at a marked-up rate.  The decision to terminate the plaintiff was partially based on a secretly recorded conversation that occurred between the plaintiff and the defendant’s loss prevention specialist. On November 1, 2011, the former employee filed an E.E.O.C. charge of discrimination against her former employer, believing that her termination was the result of age discrimination.  Knowing that the plaintiff had hired an attorney, the defendant denied her request for arbitration, and the plaintiff filed its complaint on March 1, 2012.  At some point between the arbitration denial on November 7, 2011, and the filing of the complaint, the recording of the plaintiff’s interview was accidentally erased. On March 1, 2012, the defendant employer initiated a litigation hold, but this was too little too late.  The damage had already been done, and the plaintiff filed a motion for sanctions for the spoliation of the recorded evidence. Adding insult to injury, the Colorado District Court actually cited to the defendant’s previous spoliation case when laying out the issues of spoliation.  According to that decision, the issues of spoliation are: (1) is the evidence relevant to an issue at trial; (2) did the party have a duty to preserve the evidence because it knew or should have known, that litigation was imminent; and (3) was the other party prejudiced by the destruction of the evidence. With regards to the first issue, the court found that the recorded interview was obviously relevant to the case because it played a role in the defendant’s decision to terminate the plaintiff’s employment. Discussing the second element, the court found that the duty to preserve the evidence began on November 7, 2011, because at the time of the arbitration denial the defendant was well-aware litigation was likely.  This was the trigger event that marked the defendant’s duty to institute a litigation hold.  In fact, evidence existed that the defendant’s labor relations manager was well aware that the plaintiff’s attorney and arbitration request signified an intent to litigate the issue.In terms of prejudice, the court found that the plaintiff was prejudiced by the destruction because several factual disputes existed as to what occurred during the secretly recorded interview.  Finding the defendant “highly culpable” for the four month delay, the court also determined that the failure to collect the tape recording from “a key player” was an example of grossly negligent or willful behavior.  Even though the defendant may not have shown an intent to destroy the evidence, the company had control over the tape and the responsibility to preserve it. Therefore, the plaintiff’s motion for sanctions was granted.  Sanctions have not yet been determined, though, as the court set a future hearing to determine the precise amount of sanctions to impose. While E.E.O.C. charges, like those brought by the plaintiff here, do not always lead to litigation, companies should get in the habit of instituting litigation holds whenever they face charges like these.  Even if the chances of litigation appear remote, if possible the company should seek to preserve all pertinent evidence to avoid this type of scenario.  In this matter, if the company had issued a litigation hold when it received the E.E.O.C. charge or even upon receiving the arbitration request, it could have avoided the sanctions it will now receive.  Companies are risking too much by not immediately preserving all the evidence relevant to the potential case.  Here, if the defendant had learned from its previous bad experience with evidence spoliation, it could have instituted better preservation procedures that would have avoided the significant penalties it now confronts. Jeffrey, a Seton Hall University School of Law Student (Class of 2014), focuses his studies primarily in the area of civil practice but has also completed significant coursework concerning the interplay between technology and the legal profession.  He was a cum laude graduate of the University of Connecticut in 2011, where he received a B.S. in Business Administration with a concentration in Entrepreneurial Management.  Presently, Jeff serves as a legal clerk at a personal injury law firm in Rochelle Park, New Jersey.

Judge Sheindlin Hits Spoliating Plaintiff with Adverse Inference Instruction

In Sekisui Am. Corp. v. Hart, District Court Judge Shira Sheindlin reversed a decision of the lower court and imposed sanctions against a plaintiff for its willful spoliation of electronically stored information (ESI).  The critical point on which Judge Scheindlin and the magistrate judge opposed was whether a showing of bad faith is necessary to impose spoliation sanctions or whether a showing that the ESI was willfully destroyed is enough.  For Judge Scheindlin, where the spoliation is willful the non-spoliating party need not prove malevolent purpose: It is well-settled in the Second Circuit that: [A] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. It is the third prong of the test that was squarely tackled in this case—whether the destroyed evidence was relevant and whose burden is it to prove or disprove this factor.  Sekisui American Corporation (Sekisui) brought a breach of contract suit against Richard Hart and Marie Louise Trudel-Hart relating to the Sekisui's purchase of America Diagnostica, Inc. (“ADI”), a medical diagnostic products manufacturer of which Mr. Hart was president.  During discovery, Sekisui revealed that ESI in the form of e-mail belonging to certain ADI employees (including Mr. Hart) had been deleted or were missing. It later became clear that Sekisui did not institute a litigation hold until more than fifteen months after sending a Notice of Claim to the Harts and in the interim, Sekisui permanently deleted the Hart’s documents and data. By way of explanation, Sekisui maintained that the destruction of Hart’s ESI was largely due to the actions of ADI's former Head of Human Resources (Taylor), who had acted without direction from Sekisui.  Sekisui further asserted that Taylor made the unilateral decision to delete Hart’s e-mail for the purpose of freeing up space on the ADI server after determining that Hart was no longer receiving work-related e-mail.  Before directing Northeast Computer Services (“NCS”)—the vendor in charge of managing Sekisui’s information technology systems—to permanently delete Hart’s ESI, Taylor apparently “identified and printed any e-mails that she deemed pertinent to the company,” which e-mails, totaling approximately 36,000, were produced to the Harts.  Notwithstanding these measures, there was no way for the parties or the court to determine how many e-mails were permanently deleted and lost. In light of these developments, the Harts requested that the court impose sanctions on Sekisui for the spoliation of evidence.  Specifically, the Harts requested:  1) an adverse inference jury instruction based on the destruction of Hart’s ESI; and 2) sanctions for spoliation based on the alleged or actual loss of the e-mail folders of several other ADI employees.  The Magistrate declined to issue any sanctions, finding that the Harts failed to show any prejudice resulting from the destruction of the ESI (i.e., failed to show that the deleted e-mails were relevant to its defenses).  The Magistrate Judge concluded that the destruction of Hart’s ESI “may well rise to the level of gross negligence,” but decided that such destruction was not willful because “there has been no showing that Taylor directed [the e-mails’] erasure for any malevolent purpose.”  The magistrate judge declined to presume either relevance or prejudice despite his finding that Sekisui “may” have acted in a grossly negligent manner. Judge Sheindlin, however, took a starkly opposite position.  Judge Sheindlin expressly rejected the premise that the law requires a showing of malice in order to establish intentionality with respect to the spoliation of evidence. In the context of an adverse inference analysis, Judge Sheindlin found no "analytical distinction" between destroying evidence in bad faith, i.e., with a malevolent purpose, and destroying it willfully.  Accordingly, Sekisui's good faith explanation for the destruction of Hart’s ESI (suggesting that Taylor’s directive was given in order to save space on the server) did not change the fact that the ESI was willfully destroyed. And when evidence is destroyed willfully, the destruction alone “is sufficient circumstantial evidence from which a reasonable fact finder could conclude that the missing evidence was unfavorable to that party.” On the above rationale, Judge Sheindlin found the Magistrate Judge's decision to be clearly erroneous and contrary to law, and directed that an adverse inference instruction would be provided to the jury.  This case underscores the importance of timely and prudently implementing a litigation hold, when such duty attaches. Adam L. Peterson is a student at Seton Hall University School of Law, Class of 2014.  Adam is a member of the Seton Hall Law Review and prior to law school Adam was an Environmental Analyst with the New York State Department of Environmental Conservation. 

Proportionality Considerations Make an Appearance in Apple v. Samsung

Throughout the oft-covered Apple v. Samsung patent litigation there has been a multitude of pretrial motions.  Last August, United States Magistrate Judge Grewal ruled on Samsung’s motion to compel additional financial documents from Apple.  Samsung sought to discover documents from Apple regarding: (1) units sold, gross and net revenue, gross and net margin, and gross and net profits for each Apple product… (2) reports and projections ofU.S.sales, profitability margins, and financial performance for each version of the iPhone and iPad…and (3) all costs comprising costs of goods sold and all costs other than standard costs for each of the accused products. In response to this request, Apple produced documents that Samsung believed to be deficient, which was the basis of Samsung’s instant motion.  Samsung believed that Apple’s production of worldwide sales figures (as opposed to the requested U.S. figures) were not sufficiently responsive to their request of US-specific data.  Furthermore, to aid in their damages calculation, Samsung requested model level sales figures (e.g., iPhone 4, iPhone 5, etc.) but Apple only produced of sales figures at the product line level (e.g., iPad, iPhone, etc.).  Samsung contended that these productions were not detailed enough to enable Samsung to accurately calculate damages. In response, Apple argued that producing the figures Samsung requested would be unduly burdensome because it would require the coordination of “multiple financial groups” that could take “several months” of effort.  While the court was admittedly “dubious” of Apple’s claims, Judge Grewal found another, more persuasive reason to limit Apple’s production, writing, “the court is required to limit discovery if ‘the burden or expense of the proposed discovery outweighs its likely benefit.  This is the essence of proportionality – an all-to-often [sic] ignored discovery principle.” Highlighting that each parties’ damages experts had already submitted their reports, the Court held that requiring Apple to produce additional financial documents would be of little benefit.’  Thus, the court denied Samsung’s motion to compel.  However, the court also noted that because the instant motion was struck down, Apple was precluded from challenging Samsung’s damages experts for failing to “allocate geographically or by product model in any way that could have been supported by the reports disputed here.”  Judge Grewal concluded that “[t]his is enough to protect Samsung from any undue prejudice arising from Apple’s reporting limitations.” If you make a burdensome request for documents that would have little benefit, your motion is going to be denied. Matthew Miller, a Seton Hall University School of Law student (Class of 2014), focuses his studies in the area of Intellectual Property.  Matt holds his degree in Chemistry from the University of Chicago.  Currently, Matt works as a legal intern at Myers Wolin, LLC.

Court Rules In Favor for Precision in Regards to Limited Search Terms Used for Screening Privileged Documents

Whoever thinks that the legal world does not involve math is proven wrong through the Special Master’s analysis in Dornoch Holdings Int’l, LLC v. Conagra Foods, Lamb Weston, Inc. The heart of the opinion involves a percentage breakdown of search terms and their correlation of precision in regard to privileged documents. In Dornoch, the defendants objected to the privilege log of documents for three reasons: 1) the documents on the privilege log, except for communications between the plaintiffs and their outside litigation counsel dated after March 22, 2010, have not been established by the plaintiffs to be privileged; 2) The privilege log was created using overly broad search terms and has not been substantively reviewed, thus, the log contains numerous non-privileged documents; and 3) Non-correspondence documents listed on the privilege log are not privileged. In response to this objection, the court allowed the Special Master to make a recommendation on these objections, specifically allowing the Special Master to review “a statistically significant number of randomly selected documents to confirm the accuracy of the screening method.” The privilege documents log was assembled using search terms created and limited by plaintiff’s counsels and an eDiscovery technology consulting firm. And so, the Special Master did as the Court requested and took a sampling from the log to determine the effectiveness of the screen’s search terms. The consulting firm determined that “1,740 documents would need to be human reviewed” to determine whether the log was effectively precise. The Special Master decided to review 1,813 documents just to ensure it was an effective review. After explaining that Idaho law regarding attorney-client privilege and work product doctrine apply, the Special Master reviewed the documents and determined that 1,249 were not privileged documents and 564 were privileged. The Special Master also went into much detail about the effectiveness of the specific search terms that were used. Specifically, the Special Master determined that 73 percent of the search terms were highly correlated to actual privileged documents. Additionally, the Special Master determined that “those terms which identified a correlation with actual privilege of 59 percent or greater, showed a strong correlation with privilege.” Once the Special Master completed this analysis, the Special Master recommended that the documents that fall below that 59 percent correlation should be released and not kept private. Then, the plaintiffs could also decide to conduct another review of the remaining privileged documents to figure out if more should be released. Finally, the Special Master noted that it does not matter whether documents are listed as “correspondence” or “non-correspondence” for them to be determined to be privilege or not. These documents should be reviewed just as the others. Overall, the Special Master recommended that the court sustain the first objection, and overrule the third objection. As to the second objection, the court recommended the following: “(1) Concur with the selection of a 59% or greater correlation of search term precision for a document to remain withheld as privileged; (2) Allow Defendants the opportunity to further challenge the assertion of privilege above that 59% threshold, if they so choose, by requesting that the Special Master conduct a further targeted review for privilege and release any non-privileged documents discovered. The Defendants will be responsible for cost of this further analysis, if requested; (3) Release the documents associated with the less precise terms that fall beneath the 59% correlation threshold and remove them from the privilege log; (4) Prior to that release, allow Plaintiffs the opportunity to conduct a privilege review of all or a portion of the population to be released and create a supplemental privilege log. The Plaintiffs will be responsible for cost of this further analysis, if Plaintiffs chose to conduct it.”