Accessibility

If I Sue My Employer Can They Access My Private Social Media Account?

Everyone has some sort of social media account in this day and age. Even my mom has a Facebook and Instagram account. Therefore, an important question exists: How private is this information and could it ever be used against me in a court of law? The short answer is yes, if a court determines that the information’s probative value outweighs its prejudicial effect. In such an instance, private content stored on your password protected social media account must be turned over to the opposing party as discovery. Therefore, you must be wary of the content contained on your social media account; you never know when it could be used to your detriment. When Christopher Ogden sued his employer under Title VII alleging that the employer subjected him to a hostile work environment, disparate treatment based on reverse gender discrimination, and retaliation, he never imagined that his private social media communications and content would be subject to discovery and used to impeach the validity of his claim. However, his employer did exactly that and filed a motion to compel discovery seeking all pictures Ogden posted or was tagged in on “any social networking website.” Furthermore the defendant employer requested “all status updates, messages, both sent and received, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments and applications . . . .” This motion was likely never expected to prevail because of its breadth and lack of specificity; however, the court did not dismiss it altogether. Ultimately, the court granted the motion for discovery in part and denied it in part. Relying on the holding of Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., the court asserted that the defendant’s motion cast “too wide a net” and therefore requested information that would be in no way discoverable. However, Ogden did not get to keep all of his social media activities secret from the defendant as the court did carve out an area that was fully discoverable by the defense. Ogden was required to turn over all social media content relating to the lawsuit which contained information regarding his workplace conduct and his emotional state of mind before, during, and after he filed the lawsuit along with possible causes for that state of mind. Therefore, while Ogden’s employer did not gain unfettered access to his personal social media accounts, the court nevertheless allowed access to such information as pertaining to the instant suit regarding Ogden’s workplace conduct and emotional state of mind. The lesson here is that you should be ever so careful what you post on your social media sites; you never know when it could come back to haunt you. The fact that you thought it was private and thereby undiscoverable at trial will not help you. User beware. 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 Co. Office of the Public Defender.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

Excessive Force, Missing Video Evidence: Were the Cops Trying to Hide Something?

The Philadelphia Police Commissioner and two police officers were accused of spoliation of evidence in an excessive force case. “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence.” Kinsler v. City of Philadelphia, No. CIV.A. 13-6412, 2014 WL 3964925, at *1 (E.D. Pa. Aug. 11, 2014) (internal citations omitted). In this case, there was an incident that led Jeffrey Kinsler to file a lawsuit against the City of Philadelphia for use of excessive force. Subsequently, a witness submitted a 15-to-30-second-long video to the police department of the events that occurred prior to the arrival of the police officers on scene that day. The police department lost the video. Kinsler argues spoliation and asks for a specific jury instruction stating such, as well as sanctions. The court found however, that there was no spoliation. It determined that the video was not relevant to the case because it only showed events that occurred before the officers arrived on scene. Further, a video was in existence that showed the incident at the time the officers were involved. Also, Kinsler never claimed that the accused officers were ever in possession of the lost video. Therefore, there was no spoliation and plaintiff’s motion for sanctions was denied. Moral of the story: If evidence is at all potentially relevant in pending or foreseeable litigation, preserve it, or risk sanctions. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick in 2012 with a B.A. in Philosophy and Political Science.   Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Do E-Discovery Costs Shift?

It is a known fact that electronic discovery is costly.  For which party, however, is e-discovery costly? Does the cost of e-discovery ever shift to the other party or is it shared amongst the parties? The United States District Court for the Eastern District of Pennsylvania recently considered the cost-sharing question in the case of Cochran v. Caldera Med., Inc., when the defendant’s made a motion requesting to share the burden of costs with the plaintiffs.  The defendant argued that it had limited resources and estimated that it would cost $500,000 to collect and produce the ESI in response to the document requests. The judge ultimately denied the defendant’s request, but why? The court began with the presumption that each party must bear its own discovery costs. The judge first addressed the law under Rule 26(b)(2)(B), where the court has the discretion to grant cost sharing and other relief if the producing party shows “that the information is not reasonably accessible because of undue burden or cost.”  Information is found to be accessible if it is stored a readily usable format. The defendant did not provide any documentation in support of its estimate or identify what portion of this estimate was attributable to retrieving accessible information or reviewing documents for privilege, both of which tasks are typically not subject to cost sharing. Without this evidence, the court held that the defendant failed to show that the ESI was not reasonably accessibly as required to allow cost sharing under Rule 26. The court next considered cost sharing under Rule 26(b)(2)(C)(iii), which permits cost sharing if the court determines that “the burden or expense of the proposed discovery outweighs its likely benefit. The court held that the plaintiff document requests were relevant and material information. Thus, using the proportionality factors from Rule 26, held that the burden on the defendant did not outweigh the importance of the discovery and the seriousness of the injuries alleged by the plaintiffs and the defendant must pay. The moral of the story is that cost shifting between parties can only be considered in limited situations according to the FRCP 26. They are if inaccessible data is being requested for production, or if proportionality supports it. Keep this in mind when making your next motion for cost sharing. Click here for a look at Federal Rule 26.  Amanda is a third year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Will There Be a Presumption that ESI Is Inaccessible?

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.

What Happens When ESI Is Lost?

Willfully destroying evidence? Failing to preserve materially relevant evidence? These are just two of the allegations Lisa Alter has made against the Rocky Point School District. Prior to submitting her complaint, Ms. Alter had accused the school district of similar wrongdoings. Alter worked for the Rocky Point School District holding various positions over the years. While employed as the Coordinator of Central Registration/Administrative Assistant within the Human Resources department, Alter alleges that she was subject to a hostile work environment on the basis of her gender. Further, Alter claims that she was retaliated against for complaining to the School District about it. The opinion here is related to a matter regarding electronic discovery in this case. The plaintiff filed a motion to compel discovery and for sanctions. After taking several depositions, plaintiff claims to have discovered new testimony relevant to her most recent motion to compel discovery. Specifically, the plaintiff alleged that: “(1) Defendants both failed to preserve and willfully destroyed evidence, and (2) Defendants continue to intentionally withhold relevant evidence despite repeated demands for production.” The school district had a system for overwriting backup drives. The plaintiff contended that by not stopping the overwriting of the backup drives that it constituted a breach of the defendant’s preservation obligation. The defendant claimed that all information relevant to this case (i.e., emails stored on the school’s employee email system). The duty to preserve arises when litigation is “reasonably foreseeable.” The party that has control over the evidence has an obligation to preserve it. Once evidence is lost, the court then looks to the obligor’s state of mind to determine culpability. Here, the court determined that the defendants did not intentionally lose the data. The burden then shifted to the plaintiff to prove that the lost data was relevant.[1] In the instant case, the court did not find bad faith; thus, it was up to the plaintiff to then prove the relevance of the lost data. Ultimately, the court granted in part and denied in part the plaintiff’s motion. The court found that the plaintiff did not meet her burden of showing that the lost documents were relevant. However, the actions of the defendants that lead to losing materials placed the plaintiff in a position to have to file this motion. Thus, sanctions were awarded in the amount of $1,500.00. The moral of the story: When litigation is pending, or likely to begin, preserve or pay the price. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick in 2012 with a B.A. in Philosophy and Political Science.   Want to read more articles like this?  Sign up for our post notification newsletter, here. [1] When the breaching party acts in bad faith, relevance is assumed.

Does Forwarding Emails To An Opposing Party Qualify As A Sufficient Method of Transfer for Discovery Purposes?

The employee in this case was not an inexperienced layperson, but rather a seasoned and accomplished trial attorney. Yet even with her wealth of knowledge regarding discovery, she was nearly cited for contempt of court as a result of her unfamiliarity with electronic discovery obligations. When obligated to turn over emails to your opposing party during discovery, it is not enough to simply forward the email. Courts require the emails to be in their native form, which means containing the crucial metadata contained within the original email. In Sexton v. Lecavalier, the plaintiff, Byron Sexton, subpoenaed all documents in the defendant’s possession regarding several business entities. The subpoena provided that if these documents were in electronic form, the copies produced must be in their “native” format. In response to the subpoena, the defense attorney produced numerous documents including eleven emails that had been forwarded to her from her client’s Gmail account. The defense attorney claimed that she could not access the emails in their original format and even had an IT expert testify that the emails could not be accessed in their native format because the infrastructure for the email is controlled by Google, who does not allow its users to copy emails in native format. The issue in this case is that the emails were located in the “cloud,” and thus stored with a third party. However, even though a third party held the emails, the plaintiff argues that there are two ways to preserve the crucial metadata. (1) Emails can be downloaded to an email client such as Microsoft Outlook and then saved onto a computer in the format used by the client; and (2) Gmail emails that have been displayed in their “original” format by clicking “show original” and then saved as a PDF. The court held that even though the plaintiff currently lacked access to the files in their native format, this fact does not absolve counsel of her discovery obligations. A growing number of attorneys and courts are realizing the evidentiary value to metadata and as this trend continues, it is becoming crucial for parties to preserve all relevant electronic data. There is currently electronic discovery software in existence, which makes preservation of data a whole lot easier (http://www.ediscovery.com/solutions/collect/ is merely one example of such software). The presiding judge went on to scold both parties for even bringing this discovery disagreement in front of the court. The judge stated that the parties should have resolved this matter outside of court and that the defendant could have provided the emails in a correct format with minimal cost. However, the judge believed that the defense attorney had a good faith belief that the emails could not be provided in their native format and refused to hold her in contempt. It seems that ignorance was the defense attorney’s saving grace. Any practitioners reading this will not have the luxury of such a defense. In order to avoid charges of contempt being levied against you in the future, it would be wise to invest in electronic discovery software. At the very least, you should download Microsoft Outlook and save all of your emails in a format that preserves metadata such as .eml or .msg. As less paper copies of documents are being utilized, and as electronic storage is becoming more prevalent, native documents are going to become an issue increasingly seen by courts. Additionally, resolve any such discovery issues with your opponent. No judge wants his or her time wasted with similar motions compelling discovery. 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

Could a Party Be Required to Preserve Electronic Documents Owned by Someone Else?

Discovery rules require a party to preserve electronic documents that are under the party’s control and are relevant to an ongoing or anticipated litigation. Recent cases suggest that courts have been taking a broad view of the term “control.” Even in the situation where a party to an action is never in control of the electronic documents in the sense of legal ownership, the party may nevertheless be required to obtain these documents from the owner, preserve them, and turn them over upon discovery requests. The test Voluminous all cialis online prescription I Lips! Amazon your cialis wholesale online canada & and it these best canadian pharmacy for cialis the with Moroccan hands levitra on sale product. Since it the cialis prices I waxed levitra india color: and. Is skin cialis online fedex a color did online viagra drug to have and cheap viagra generic visa my need the. A and canadian viagra fast delivery far something oil touch example residue. But? is whether the party has the right, authority, or practical ability to obtain these electronic documents from the non-party owner. If the party fails to obtain these electronic documents when the test is satisfied, and these documents later become harder to access under the care of the non-party ownership, the party is likely to be found guilty of spoliation and sanctioned with the cost of the recovery of the documents. In Mazzei v. Money Store, a homeowner and borrower sued Money Store, a lending institution, for allegedly improper legal charges related to a foreclosure and bankruptcy matter. Money Store contracted the foreclosure service to Fidelity. Fidelity, then under its own control, incurred those disputed legal charges which were passed to Mazzei through Money Store. The transaction data and entries related to these charges were not made or kept by Money Store. Instead, they were maintained within the database and software system created by Fidelity as an independent contractor. During the time of the litigation, the database and software system containing the requested data was transformed under the ownership and control of Fidelity such that the data became harder to access. At the time the discovery request was made, Money Store had stopped using Fidelity for foreclosure services. Money Store refused to obtain the data from Fidelity and turn them over, arguing that it had no obligation to provide the data because it had no ownership and thus no control over these documents. Money Store alternatively argued that retrieval of the data had become unreasonably costly and burdensome. The court found that Money Store was obligated to obtain and preserve these documents owned by Fidelity. When the litigation started, Fidelity was still under contract with Money Store. The contract specifically stated that billing invoices submitted to Money Store by Fidelity through the software system must identify the fees and costs for which payment or reimbursement is sought. Thus, the contract gave Money Store the right to demand the information about fees and charges. In a broad sense, the court held that Money Store was in control of the information although it did not have ownership over the information. Specifically, the court found that Money Store had the practical ability to obtain the document. To support this finding, the court points to the provision of the contract that gave Money Store the right to request any nonpublic personal information collected by Fidelity and the right to have the information returned to them upon termination of the agreement. This overrides any claim that such information is confidential. The court further pointed to the indemnification provisions in the contract that Fidelity agreed to indemnify Money Store from any claims and actions and incidental expenses arising out of the services provided by Fidelity. Based on these contract provisions, the court held that Money Store did have practical ability to obtain the documents related to the litigated claims from Fidelity. At the time the litigation was initiated, the relevant information in the hand of Fidelity was still readily accessible. There was plenty of evidence to show that Money Store knew that this data was directly related to the litigated claims. However, Money Store did not try to obtain the data from Fidelity. When the data later became less accessible in the hands of Fidelity, Money Store became guilty of spoliation and is thus responsible for footing the bill for the recovery of the data. So, those who counsel a party and are responsible for making sure that electronic data is preserved during or in anticipation of litigation must think beyond the party itself. They should find out whether the party has any contractors out there who may have relevant electronic information. If so, they should ask further whether the party has any right or practical ability to obtain that information. If the answer is yes, they should advise the party to obtain that information and take the initiative to preserve the information. Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a fourth-year evening student at Seton Hall University School of Law focusing on patent law. Want to read more articles like this? Sign up for our post notification newsletter, here

What Should Law Enforcement Agents Do If A Suspect’s E-Mails Are Stored Abroad?

Tech savvy criminals in the United States beware!  Your e-mails stored on servers abroad are discoverable by law enforcement agents in the United States.  A technologically clever criminal in the United States may have set up his e-mail account with a different country code to hide e-mails abroad from law enforcement agents in the United States during an investigation.  The United States District Court of the Southern District of New York did not reward the particularly tech savvy criminals when it decided In re Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation (“In re Warrant to Search”) on April 25, 2014. In In re Warrant to Search, law enforcement agents in the United States obtained a warrant authorizing the search and seizure of information associated with a specific web-based e-mail account that is stored at the premises of Microsoft Corporation.  In response, Microsoft’s Global Criminal Compliance team complied with the warrant to the extent of producing the information stored on servers in the United States.  However, the servers in the United States only contained non-content information because the target e-mail account was hosted in Dublin, Ireland, where a server stored all the content information.  Thus, Microsoft filed a motion seeking to quash the warrant to the extent that it directs the production of information stored abroad. Microsoft’s obligation to disclose customer information and records to the Government is governed by the Stored Communications Act (the “SCA”).  However, Microsoft argued that Federal courts are without authority to issue warrants for the search and seizure of property outside the territorial limits of the United States.  The Government contended that the SCA does not implicate principles of extraterritoriality, and as such, Microsoft’s motion must be dismissed. The Court dismissed Microsoft’s motion and required it to produce the digital information from the server in Dublin.  The Court found that the SCA was ambiguous regarding principles of extraterritoriality, but the structure of the statute, the legislative history, and the practical consequences undermined Microsoft’s argument.  An SCA Warrant allows for law enforcement agents to obtain digital information even when it is stored on servers abroad. Criminal defendants, law enforcement agents, and internet service providers can all learn a lesson from this case.  Law enforcement agents in the United States should be aware that digital information stored abroad is not necessarily beyond their grasps.  Internet service providers should provide the digital information from all its servers, irrespective of the server’s location, to ensure full compliance with SCA Warrants.  And finally, for all the tech savvy criminals out there, your e-mails will be discovered by law enforcement in the United States even if stored on a server in a different country.  If you are concerned about hiding your e-mails from law enforcement agents in the United States, I suggest that in addition to storing your e-mails on a server abroad, you should also not use an American internet service provider, such as Microsoft. 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.

Does the Government Need a Warrant to Access Cell Phone Tracking Information? Third Circuit Says “No.”

Big Brother is always watching and listening.  If there’s one lesson to take away from the recent NSA scandals it’s that the government is not only capable of tracking your every digital move, but also acting on that capability.  Now, according to the Third Circuit, the government can use the broad language of the Stored Communications Act to force cell phone providers to turn over a criminal suspect’s phone’s historical location data. In a lengthy and drawn-out criminal investigation, the Third Circuit became the first federal court of appeals to decide a crucial issue that required balancing a cell phone user's privacy rights with a law enforcement agency’s needs to acquire potentially vital information.  The government attempted to use the Stored Communications Act to force a suspect's cell phone company to turnover cell site location information or CSLI.  Hoping to prevent an unjust and unwarranted intrusion or breach of a citizen's privacy expectations, the Electronic Frontier Foundation (EFF) filed a response in opposition to the government’s efforts.  The Third Circuit was then forced to determine whether or not the government could obtain this information without first establishing probable cause or acquiring a warrant. The information at issue in the matter is commonly kept by all phone companies and service providers as part of their routine business operations.  Every time a call is made via a cell phone, signals are transmitted via nearby cell phone towers.  These towers then collect and store data that can later be used to establish the general area where the individual was located when making the call at issue.  The information would not provide the exact location of the cell phone at the time of the call, but would instead allow the government to infer as to where the party where was located.  Even though this would seem like a minor distinction, in the eyes of the court it is incredibly important because it weakens any argument that the cell phone acts as a tracking device which would raise significant Fourth Amendment concerns under Supreme Court precedent. According to the exact language of the Stored Communications Act, a court can order the disclosure of this information if the government “offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or other records or other information sought, are relevant and material to an ongoing criminal investigation.”  18 U.S.C. § 2703.  The government argued that it met this burden because the information it was seeking was relevant and material to an investigation of narcotics trafficking and other violent crimes.  The EFF attempted to combat these claims by arguing that to obtain the information the government must obtain a warrant by establishing probable cause. Ultimately, however, the court held that the information was in fact obtainable by the government without a warrant or probable cause under the language of the Stored Communications Act.  According to the court, the Act’s language provided a specific test to determine whether an order granting the discovery of such information should be granted.  If Congress wanted to implement a warrant requirement, it could have specifically done so.  Instead, Congress chose the lesser standard of specific and articulable facts. The court, however, also went on to hold that the Act’s language actually granted a magistrate judge discretion as to whether or not to require a warrant showing probable cause.  Because the Act states that an order “may be issued” rather than requiring it, a judge deciding whether or not to allow access to such information could require a showing of probable cause. Additionally, the court established that a cell phone customer does not voluntarily share his or her location information with a service provider because the customer is probably unaware that their providers are in fact collecting and storing this historical information.     Although the Third Circuit’s holding is strictly limited to the collecting of historical cell phone location information, the decision ultimately has far-reaching consequences.  In the field of electronic discovery, privacy is an ongoing topic of debate, especially with the recent revelations of the massive amounts of data the government is in fact already collecting.  Because electronically stored information can provide a bevy of potentially vital information in easily manipulated formats, law enforcement agencies will continue to access it wherever possible.  Courts will continually be asked to balance individual privacy concerns with the broad policies of discovery. Jeffrey, a Seton Hall University School of Law graduate (Class of 2014), focused 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. 

Proportionality Applies to International Trade Disputes As Well

In Timken Co. v. U.S., the plaintiff ("Timken" or "Plaintiff") challenged the decision of the Department of Commerce, International Trade Administration ("Commerce"), denying Plaintiff access to computer tapes submitted by defendant-intervenors (the "Defendant") in a complex trade case.  Timken sought the tapes notwithstanding that it had received the very same information in paper form. Plaintiff advocated its position by discussing the hardship that would be imposed if Plaintiff had to reproduce the tapes itself.  Plaintiff demonstrated that it would require 7,500 man-hours and a legion of "keypunchers," at a total cost of approximately $200,000 to duplicate what Commerce already had in its possession.  With respect to the need for the tapes, Plaintiff indicated that without the tapes it would not be able to identify factual errors in the data and other mathematical or methodological errors. Commerce countered the above points by arguing that if it had to supply the tapes, it would have to expend significant energy insuring that customer names had been deleted and assisting Plaintiff with mechanical problems that may arise.  Commerce also asserted that if it was compelled the tapes companies would be less likely to store information on tapes moving forward, to prevent disclosure. In reviewing the merits, the Court of International Review applied the standard expounded in the applicable legislative history; that is, "whether the need of the party requesting the information outweighs the need of the party submitting the information for continued confidential treatment."  The court first concluded that the cost factored weighed in favor of Plaintiffs. Not only were Plaintiff’s costs to reproduce high, but also Plaintiff was willing to offset any costs to Commerce.  This process also minimized the involvement, and therefore the burden, of Commerce.  With respect to the argument that the tapes were required by Plaintiff to independently analyze the data, the court found that access to the tapes was essential for effective advocacy, and that such work by Plaintiff would not constitute a "duplication of administrative functions."  Finally, the Court dismissed Commerce's argument that companies would no longer maintain data on tape: "[I]t is unlikely that the mere possibility of trade litigation in the United States would prompt foreign exporters to return to archaic business procedures." Although not articulated as such, the court engaged in a proportionality analysis typically applied to discovery disputes in federal courts.  Plaintiff's willingness to offset the costs to Commerce seemed to sway the court, just as it would in a typical discovery dispute.  Another principle to be extracted from this case is the value inherent in having data in a particular form.  This may be an area where practitioners miss the boat. A savvy e-disco attorney will know the ins and outs of how different forms of data can be manipulated, and the form most ideal for recovering (or inhibiting recovery) of particular information.  So practitioners should remember at their next meet and confer, just getting the information may not be enough—form may be critical. Adam L. Peterson is a graduate of Seton Hall University School of Law.  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. 

  • Find an eLesson


  • Register for Post Notifications

    Subscribe to receive updates whenever a new eLesson is published.

    Manage Subscriptions
  • Let Us Blog Your Event!

    eLessons Learned is fast becoming the site of choice for employers, employees, judges, lawyers, and journalists who are interested in learning more about these areas without being intimidated by the complexity of the topic. In fact, organizations and event coordinators often feature eLessons Learned as their official eDiscovery blog. Fill out our simple registration form to have eLessons Learned be the official blog of your organization or event.

    Register Now
  • Recent Praise

    The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.

    Robert Ambrogi

    Legal Tech Blogger and creator of LawSites




    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg


    Click here to see more.
View in: Mobile | Standard