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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
By the time In re Biomet made it in front of a Seventh Circuit Judge for a ruling, 2.5 million documents and attachments were produced to the plaintiffs in this large class action case against Biomet. The plaintiffs wanted the judge to order the discovery of electronically stored information. The plaintiff’s Steering Committee was unhappy with the amount of documents produced and claimed that it should have been almost five times that amount. The plaintiffs challenged the electronic discovery procedure that Biomet had undertaken. Specifically, the plaintiffs wanted the judge to make a ruling that the defendant’s process was “tainted” by their use of keyword culling. The judge disagreed and refused to make such a ruling, which would have thrown Biomet back to almost square one. Biomet went through an extensive process to cultivate documents to produce for the plaintiffs. Biomet first used “electronic search options, then predictive coding, and finally personal review.” The plaintiff’s issue was primarily the first step that defendants irrevocably ruined the rest of their document production from the get-go. To first identify what documents would be relevant the defendant used a “combination of electronic search functions” which included keyword culling. The defendant’s original pool consisted of 19.5 million documents and attachments which the first step narrowed down to 3.9 million (eventually getting to 2.5 million documents). The plaintiffs thought they should have produced 10 million documents and said their keyword searches were the problem. The plaintiffs cited to a New York Law Journal article that said that keyword searches were “only 20 percent” responsive. According to the plaintiffs, Biomet’s approach was flawed because it used the “less accurate” method of keyword search in the beginning instead of predictive coding. They asked for the judge to rule that the defendants had to go back to the first step and use predictive coding with “plaintiffs and defendants jointly entering the ‘find more like this commands’. The judge found that the plaintiff’s journal article and one cited search claiming that Boolean and keyword searches are less effective at producing relevant documents were insufficient in proving that Biomet did not meet its discovery obligations. Instead, the judge found that its procedure did comply with FRCP 26(b) and 34(b)(2). The judge also refused to read into the rules that Biomet had to allow the plaintiffs to sift through possibly privileged documents with them. The judge also found that Biomet fulfilled their federal requirements as proven through their statistical sampling and confidence tests that they ran over their documents. This sampling found that less than 1.34 percent of the documents that weren’t selected would be responsive and that between 1.37 and 2.47 of the original 19.5 were. Biomet’s process singled out 16 percent out of that original. The judge cited heavily to FRCP 26 (b)(2)(C) and said that Plaintiffs’ request did not comport well with proportionality. Biomet had already spent $1.07 million and “will total between 2 million and 3.25 million.” Were Biomet to go back to their original bank of ESI, it would cost them in the low seven-figures. The judge said that it would not make Biomet do that just to test the plaintiffs’ theory that more responsive documents would be found through predictive coding instead of keyword searches.
Phillips v. WellPoint, Inc., involved an application for costs by the prevailing defendant, WellPoint. Among the costs sought to be recovered by WellPoint were $83,642.83 for "the process of scanning hard copy documents so that they could be produced in electronic format" and for services “for the preparation of native electronic files and documents for production in electronic format.” WellPoint sought to recover these as costs of "making copies." Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party.” Those costs may include: (1) Fees of the clerk and marshal; (2) Fees for printed and electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. 28 U.S.C. § 1920 (emphasis added). In evaluating the extent to which costs associated with producing electronically stored information ("ESI") are recoverable, the court, with no in circuit precedent on point, analyzed and ultimately adopted the Third Circuit's reasoning from Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012). In Race Tires, the Third Circuit found that the scanning of hard copy documents and the conversion of native files to TIFF were costs recoverable within the statutory meaning of “making copies.” However, the Third Circuit further found that although “extensive ‘processing’” may be “essential to make a comprehensive and intelligible production” of ESI, not all costs of producing ESI—such as the preliminary steps in the discovery process, such as locating documents, travelling to the location of the documents, or screening potentially relevant documents for privilege—are recoverable. Applying these principles, the court found the majority of costs sought by WellPoint to be non-recoverable. Only costs for imaging of hard copy files and conversion of documents into single TIFF images were recoverable. Conversely, the following costs were not recoverable: the extraction of document text; the process of rehabilitating documents in which the metadata fields and document text were damaged; applying bates stamp numbers; creating an image load file; creating a concordance-ready data load file; working with the clients in establishing production requirements; conducting quality control. The result was WellPoint only recovered $26,711.00 of the $83,642.83 sought. Adam L. Peterson is a student Seton Hall University School of Law, Class of 2014 graudate. At Seton Hall, Adam was 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.
One might think that in a lawsuit if your adversary is caught breaking the rules there might be some penalty. However, in Cottle-Banks v. Cox Communications, the Honorable Gonzalo P. Curiel of the District Court for the Southern District of California held otherwise, allowing the defendant’s misconduct to go unpunished. This case started when Brittini Cottle-Banks alleged “that Cox has violated the negative-option-billing provision of the federal Cable Act by failing to disclose and obtain customers’ consent to be charged for monthly rental fees associated with their cable set-top boxes.” Due to this allegation, Cox had a duty to preserve any potentially relevant evidence. The evidence in question consists of records of telephone calls made to Cox by customers. Despite being put on notice that they had a duty to not record over the records of these calls, Cox did just that. This taping over resulted in about 6 months worth of calls being taped over. With proof of this spoliation of evidence, Cottle-banks moved for an adverse inference sanction; an order from the court instructing a jury to assume that whatever was deleted was evidence against Cox. However, the 9th Circuit does not have a rule on this sanction so Judge Curiel used the standard from the second circuit. For an adverse inference sanction a party must establish that their adversary: had control of the evidence, a culpable state of mind, and the spoiled evidence was relevant and supportive of a party’s claim or defense The evidence of these first two elements is clear. Cox clearly had control and their failure to preserve despite being put on notice is indicative of a culpable state of mind. However, because “the burden falls on the ‘prejudiced party’ to produce ‘some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.” Since Cottle-Banks had no proof that she was prejudiced by Cox’s spoliation of evidence, the Court refused to grant an adverse inference sanction. Thus, if you are going to move for an adverse inference sanction, be sure to have some proof of prejudice. Matthew G. 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 Gearhart Law.
We all know that break-ups can be difficult, but when a person’s conduct crosses certain boundaries, it can become harassment. Whether this is done physically or electronically, the damage remains the same. In People v. Kucharski, the plaintiff and the defendant ended a two-and-a-half year relationship. Rather than take the high road, the defendant decided to alter the plaintiff’s MySpace page, post lewd pictures and obscene comments, and change her login information. After a bench trial the defendant was convicted on two counts of violating the Electronic Harassment Statute and one count of violating the Encryption Statute, which he appealed. Following their separation, the defendant logged onto the plaintiff’s MySpace account, which he created on her behalf, and made certain alterations. Specifically, the defendant posted a picture of the plaintiff in underwear and replaced her profile information with lewd and obscene comments. Detectives served a warrant to MySpace to obtain the e-mail address associated with the account as well as the IP address of the computer that accessed the account during the time in question. The investigation led to the home of the defendant, who lived with his parents and younger sibling. Shortly thereafter, most of the plaintiffs profile information was deleted and she was no longer able to access her account. The state had to show that the defendant used electronic communication to make an obscene comment with intent to offend. The the defendant does not argue that the State failed to show that the alterations to the MySpace page were done with intent to offend. Rather, the defendant argues only that 1) there was insufficient evidence to show that he altered the MySpace page and 2) the alterations were not “obscene.” The court did not buy this argument. The overwhelming evidence demonstrated that the defendant was in possession of the photograph that replaced the initial profile picture, the defendant had a motive, and these were the only two individuals who knew the login information. Furthermore, the court found the comments and posts made by the defendant to be “disgusting to the senses” or “abhorrent to morality or virtue.” Simply put, the defendant could have expressed the same ideas in a different and more tolerable manner. Finally, the defendant appealed his conviction based on the Encryption Statute for changing the login information and preventing the plaintiff from accessing her account. The court looked at the dictionary definition of “encryption:” “[T]he use of any protective or disruptive measure, including, without limitation, cryptography, enciphering, encoding, or a computer contaminant, to: (1) prevent, impede, delay, or disrupt access to any data, information, image, program, signal, or sound; (2) cause or make any data, information, image, program, signal, or sound unintelligible or unusable; or (3) prevent, impede, delay, or disrupt the normal operation or use of any component, device, equipment, system, or network.” The court overturned the defendant’s conviction, finding him not guilty of Unlawful Encryption. The court reasoned that simply placing a password on a document does not involve the transformation, manipulation, or destruction of data. Therefore, changing the password did not fall within the meaning of encryption as used within the statute. Would you agree?
This particular dispute revolved around ProconGPS, Inc.’s, the plaintiff, desire to introduce infringement charts or alternatively to amend its infringement contentions pursuant to Patent Local Rule 3–6 so the contentions were consistent with its infringement charts. The Northern District of California issued an opinion without oral argument granting the plaintiff’s motion to compel. These charts were provided as an answer to Skypatrol, LLC’s, the defendant, interrogatories asking for ProconGPS's evidence that the defendant performs, induces, and/or contributes to the infringement of each of the asserted claims of the patents-in-suit. The defendant argued the charts expanded the scope of allegations. Conversely, the plaintiff responded that the charts simply provided in more detail the information it obtained during discovery. The dispute is governed by Patent Local Rule 3-6 which stated: Amendment of the Infringement Contentions or the Invalidity Contentions may be made only by order of the Court upon a timely showing of good cause. Non-exhaustive examples of circumstances that may, absent undue prejudice to the non-moving party, support a finding of good cause include: (a) A claim construction by the Court different from that proposed by the party seeking amendment; (b) Recent discovery of material, prior art despite earlier diligent search; and (c) Recent discovery of nonpublic information about the Accused Instrumentality which was not discovered, despite diligent efforts, before the service of the Infringement Contentions. The court focused on section (c) and determined that the plaintiff had been diligent. The defendant had produced its discovery documents very slowly. Only 2,478 pages of documents were produced by December 7, 2012. About 500,000 more pages were produced in 2013 and the defendant’s source code was not made available until January 30th with paper copies produced in February. Additionally, the plaintiff proved the information was nonpublic because it was almost entirely made up of material that Skypatrol has designated “Highly Confidential–Attorneys' Eyes Only.” The defendant tried to argue the inclusion of the charts would prejudice it. However the defendant could not sway the court as it was not subject to any further discovery requests and no new products were added to the infringement claim. It appears that this is simply a case where Skypatrol could have prevailed had it provided its documents in a more timely fashion. Since the defendant did not produce everything before the Infringement Contentions as described in Patent Local Rule 3-6(c), the plaintiff was able to utilize Patent Local Rule 3-6. George is a graduate of Seton Hall University School of Law (Class of 2014). George complated both the Health and Intellectual Property Concentrations and is especially interested in patent law. He received both a B.E. and M.E. at Stevens Institute of Technology in Biomedical and Systems Engineering, respectively. During his time at Seton Hall, George worked as a law clerk at Stone Law in Colts Neck, NJ, where he assisted in the drafting of litigation documents and Office Actions with the United States Patent and Trademark Office.
United States Magistrate Judge Leslie G. Foschio dismissed the plaintiff’s motion to compel defendant to meet and confer on ESI protocol for the defendant’s predictive coding due to the fact that the defendant was willing to meet with the plaintiff and their respective ESI consultants, minus any consultants that had previously worked on the the defendant’s case against the plaintiffs. And, while it was necessary for Judge Foschio to make a judgment on this issue, the more essential question concerning what is required to be disclosed by a producing party when using predictive coding for ESI production is still left unanswered. Gordon, et. al. v. Kaleida Health, et. al., concerns employees filing suit, under the Fair Labor Standards Act (FLSA), against the employer for unpaid wages and overtime pay. The parties had been in discussions about how to review the defendant’s large volume of e-mails (between 200,000-300,000) for over a year, using key-word search methodology, but to no avail. On June 27, 2012, the court requested the parties’ joint or individual protocols to be implemented for the ESI production. When neither party presented protocol, the court ordered the completion of ESI discovery by October 23, 2012, and non-ESI discovery by January 23, 2013. On September 7, 2012, after communication back and forth, the defendant emailed the plaintiff notifying them that the defendant planned on using predictive coding and informing the plaintiff that the defendant would not participate in discussions establishing protocol with the plaintiff’s ESI consultants. Although, the plaintiff requested a discussion of protocol to be used for assuring successful search methods in the defendant’s predictive coding, on September 25, 2013, the defendant sent the plaintiff its ESI protocol and stated that they would subsequently send a list of the defendants’ email custodians. On October 1, 2013, the plaintiff sent a letter objecting to the defendant’s ESI protocol and noting issues that needed to be discussed and resolved between the two parties, and their respective ESI consultants, prior to the implementation of the defendant’s predictive coding. The plaintiff then filed a Motion to Compel, along with a Memorandum of Law In Support, for the defendant to engage in ESI protocol discussions with both parties’ ESI consultants present, and, if no agreement was reached, for both parties to submit their respective protocols to the court for a ruling as to which should be adopted. On October 16, 2012, the defendants filed an Attorney Declaration in Opposition To Motion To Compel ESI Meet and Confer and a Memorandum of Law in Opposition in which the plaintiffs filed a Reply Memorandum of Law. The plaintiffs relied heavily on Moore v. Publicis Groupe & MLS Group, 287 F.R.D. 182 (S.D.N.Y. 2009) in their memorandums, in asserting that parties intending to use predictive coding for producing ESI, are required to discuss and agree on a protocol to guide the production of documents. Predictive coding allows for a party to “train” the computer software to search for any and all relevant ESI found on the respective computer/hard drive, by feeding the computer a number of “seed set documents.” The software uses the “seed set documents” as a template of what the parties want produced for further examination pending trial. And, while the court in Moore stated that “cooperation” and “transparency” was necessary “in all aspects of preservation and production of ESI,” the plaintiffs in this case seem to take the Moore ruling a step further by attempting to compel the defendants to not only cooperate with ESI protocol discussions, but also to provide the plaintiff with the “seed set documents” the defendant planned on using for predictive coding. The defendants clarified that there was never an issue with meeting and conferring with Plaintiff on discussing an agreed-upon ESI protocol; however, the plaintiff’s ESI consultants that had previously provided services to the defendant in this case were to be excluded and disqualified from the parties’ protocol discussions. Furthermore, the defendant relied on the general principle that the producing party has “sound discretion” in ESI production, to contest the the plaintiff’s assertion that the court should order parties to agree on specific protocol in guiding the defendant’s predictive coding. And in response to the plaintiff’s reliance on Moore, the defendant pointed out that the court did not require the defendants in that case to provide the plaintiffs with the “seed set documents,” but rather, the defendants volunteered the documents used in their production search method. Given the fact that the defendant was willing to meet and confer with the plaintiffs and the plaintiffs’ ESI consultants, the court did not find it necessary to compel the defendant to do so. Since the defendant’s Attorney Declaration stated that the defendant was aware of its discovery obligations under Local R.Civ. P. 26(f)(3) (parties must attempt to reach an agreement on ESI discovery) and Fed.R.Civ.P. 34 (courts can find a producing parties search unreasonable and noncompliant with its production duties), Magistrate Judge Foschio did not find it necessary to remind the defendant of the possible considerations concerning their use of predictive coding. The plaintiff’s motion was dismissed without prejudice, having made clear that a requesting party must omit all ESI consultants from meet and confers that have previously serviced a producing party on the same case, if requested to do so; however, the question left unanswered is what is required to be disclosed to the requesting party when the producing party is using predictive coding and “seed set documents” to gather ESI production.
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.
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.
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. 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. 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.  “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).  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.
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.