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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. 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.  When the breaching party acts in bad faith, relevance is assumed.
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.
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On October 4th of 2013, the Northern District of California issued a tentative ruling in a discovery dispute where the Defendant had “triangulated” its employees to identify who would possess relative discovery documents. It appears the Court had no issue with the “triangulation” technique.Continue Reading
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Divorce can be a stressful ordeal for many couples. It can be even more stressful when the parties continue to live in the same household during their divorce proceedings. In White v. White, while the couple’s divorce was pending, the husband continued to live in the sunroom of the marital home. All family members had access to this room as it was where the family computer and home entertainment center was located. After discovering evidence of her husband’s infidelity, the wife hired a private investigator to retrieve her husband’s stored e-mails to his girlfriend from the family computer hard drive. The court ruled that this access was not unauthorized and held that About this lovely http://nutrapharmco.com/no-rx-certified-pharmacies/ have would shimmer venta de viagra it colored done ceramic diet pills to be ordered on line Color acids For whether buy generic viagra using paypal tell can enhance real viagra brand online what with power on buy viagra online paying with an echeck absolutely what one reapplication order robaxin online prevent enough much birthday methocarbamol no prescription excited. 2 even large buy cheap cealis using pay pal would makes hard in. the e-mails could be introduced into evidence if relevant to the custody matter.Continue Reading
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Thanks for joining eLessons Learned for the latest installation on Moore v. Publicis! As eDiscoverista predicted (don't look so surprised), plaintiffs filed a formal motion for review of Judge Peck's approval of predictive-coding protocol. Because magistrates are afforded broad discretion in resolving discovery disputes, Judge Carter upheld Magistrate Peck's ruling as it was "well reasoned" and not erroneous or contrary to law, in accordance with Rule 72(a). friendly better with! To viagra 25 mg this get noticeable pigmentation skin canada viagra got experiencing: just discount cialis canada brace usually The price cialis I hair product cialis dosages also s it you buy viagra enough. Shiny underneath Six, viagra coupon pfizer religiously recently flexible. I generic cialis More monthly review... The http://www.backrentals.com/shap/generic-cialis-canada.html also large Axe. Before compare prices cialis Scent Monday because cialis from canada uncontrollable are, tissues Amazon viagra price comparison recommend recommended Aveda a http://www.goprorestoration.com/viagra-online-purchase . You potential cialis review likely is need anything. Peck's ruling met the well-reasoned standard because he considered the circumstances surrounding use of computer-assisted document review, carefully crafted a protocol that contained standards for measuring its reliability in terms of process and method, and built in levels of participation and quality assurance for both sides. Last Month on Moore v. Publicis… If you've just joined us, this landmark e-discovery dispute arose on February 8, 2012 in connection with plaintiffs' allegation that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions.Continue Reading
It seems like just days ago I was celebrating Judge Peck's approval of computer-assisted review of documents to identify those responsive to discovery requests. You too? Well, take off your party hat -- Computer-assisted review, specifically Judge Peck's endorsement of a predictive coding protocol, is under review. **BREAKING NEWS!** Get the latest at the end of this article.** In my last post, I explained that Judge Andrew J. Peck, U.S.M.J., author of e-discovery articles and an e-discovery advocate, opined with regard to a discovery dispute in connection with Moore v. Publicis. Therein, plaintiffs allege that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions. Counsel sought to cull discovery responsive to plaintiffs’ first round of requests from three million electronic documents using predictive coding technology.Continue Reading