Before A Lawsuit Is Filed, Can A Company Be Required To Preserve Evidence? In NY, The Duty Can Be Triggered Even Without A Cause of Action

This case arose against the backdrop of a criminal trial involving a rabbi who was convicted of multiple counts of sexually related crimes against a girl beginning when she was twelve years old. During the rabbi’s trial, the presiding judge made several announcements notifying the audience that photography was stringently forbidden. This prohibition was also displayed on numerous signs in the courthouse and courtroom. Even though these notices were on display, numerous audience members took photographs of the juvenile victim during her testimony. Company Lemon Juice, the plaintiff, and two others, Joseph Fried and Yona Weissman, were arrested for violating the judge’s prohibition on photography. However, Lemon Juice was not sitting with Fried and Weissman in the courtroom, where an officer of the court discovered Fried and Weissman took pictures of the juvenile on their cellular phone. The court officer later discovered a photograph on Twitter of the juvenile victim. The image on Twitter resembled the image he viewed on the cellular phone of Fried and Weissman earlier that day. The Twitter account used to upload the photograph to the internet was in the name of Lemon Juice. The Twitter account also showed a picture of Lemon Juice. Subsequently, Lemon Juice was arrested and charged with second-degree criminal contempt for acting in concert with Fried and Weissman. After fourteen court appearances to defend himself, the charges against Lemon Juice were dismissed after a prosecutorial investigation found that Lemon Juice had no connection to the Twitter account that was the subject of the charges. The background leads to the case that is the subject of this article. After the charges against Lemon Juice were dropped, he sought a court order to compel Twitter “to disclose basic subscriber information, records, internet protocol addresses or similar information sufficient to identify the individual or individuals who owned or operated the subject account and logged into or tweeted on the subject account.” Lemon Juice also sought a court order compelling Twitter to preserve documents containing information relevant to the upload of the picture of the juvenile victim. Lemon Juice is seeking this information in order to secure the identity of the person who uploaded the image so he can name that person in a tort action. An order for a pre-action disclosure to be ordered by a court, the requested information must be sought solely for the purpose of determining who should be named as the defendant. It is not allowable as a fishing expedition to gauge whether a cause of action truly exists. Despite this prohibition on fishing expeditions, a plaintiff need only provide a factual basis to show that a prima facie cause of action exists. These facts will be construed in a light most favorable to plaintiff as well. In this case, Lemon Juice provided a sufficient factual basis to prove a prima facie action for intentional infliction of emotional distress. Additionally, the court addressed a possible argument from the creator of the Twitter account. The argument would be that freedom of speech protects his or her behavior because anonymous speech via the internet is afforded First Amendment protection. In this case however, because Lemon Juice suffered tortious damage, the First Amendment does not protect the unnamed defendant’s speech. The court ordered Twitter to disclose the user information sought for the account pertinent to this motion.       As to the preservation of evidence, the court ruled that Twitter must preserve the documents requested by Lemon Juice. The court stated, “prior to the commencement of an action [in New York state court], disclosure to preserve information may be obtained by court order pursuant to CPLR 3102(c). When a potential plaintiff invokes CPLR 3102(c) for the purpose of preserving information, the existence of a claim need not be demonstrated with certainty.” In this case, Lemon Juice greatly exceeded this threshold to compel preservation because he demonstrated a prima facie cause of action. There are two lessons to be gleaned from this case. The first is that anonymous on internet posting will not necessarily preserve your anonymity. If you post something that potentially constitutes a tort on another individual, the First Amendment will not save you. The more relevant lesson is that the duty to preserve may be triggered even if a plaintiff cannot demonstrate the existence of a claim with certainty. Companies with possible pending litigation can be required to preserve documents and evidence even if a lawsuit has not yet been commenced. 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 Seton Hall’s 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

Changing Horses Midstream? Court Says “Yes” to plaintiff Switching From Manual Document Review to Predictive Coding

The court entered its usual case management order setting forth a timeline of how this case was going to proceed. One of the first phases of litigation is the discovery phase. This means that both sides get to ask each other for documents and information regarding the issue in the case. The rules are fairly straightforward in this phase and each side will likely be obligated to provide much of what the opposing side asks for. In the instant case, after doing some manual searching, the plaintiff, Bridgestone, requested to use predictive coding to help sort through over two million documents. Predictive coding, to put it simply, is akin to a smarter keyword search. Keywords are put in and the program searches for those words as well as for other relevant words that it has “learned” to associate with the keywords in order to determine if a document is relevant or not. The defendant, International Business Machines Corporation, objected to Bridgestone’s use of predictive coding. The objection being that it would be an unwarranted change in the case management order. However, the court ruled that predictive coding could be used because under the rules discovery should be efficient and as cost-effective as possible. Thus, predictive coding, which is a smart search, was allowed in this case in order to expedite the discovery phase and save money on manual or other document review techniques. Moral of the story: Predictive coding may be implemented as an efficient discovery technique even if a case management order is already in place. 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.

Prophylactics Do Not Protect Pharmaceutical Companies From Data and Document Discovery Laws!

In this case, the Plaintiff Nicole Baker sues Bayer Healthcare Pharmaceutical Inc., complaining that the Bayer product Mirena was not adequately accompanied by warnings of its side effects. She asks Bayer to produce databases that contains sales calls made by the marketing and sales department to physician’s offices. The sales calls notes also contain conversations between sales representatives and healthcare providers. Bayer argues that only the sales calls notes concerning Baker’s treating physician are relevant. Bayer also argues that producing all the sales calls notes are unduly burdensome and excessive in light of the needs of the case. Ultimately, the court finds in favor of the Plaintiff, and finds that the databases containing all sales calls must be produced due to their relevance to the current case. Federal Rule of Civil Procedure 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” The information sought “need not be admissible at the trial” so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” The crux of the Plaintiff’s argument is that all the sales call notes, not just limited to those related to her physician, are relevant to her case because they would ascertain whether the pharmaceutical company is overpromoting the product Mirena. Overproduction would mean that there could be dilution or nullification of any warnings, thereby rendering the warnings inadequate. The Plaintiff argues that the volume and substance of the sales calls notes can establish whether there was a vigorous, aggressive sales campaign to the medical profession, leading to failure to heed written warnings. While this argument appears to be attenuated, it does fall under the standard of being reasonably calculated to lead to the discovery of admissible evidence. The takeaway message is that the court thought although it was a burden to the Defendant, all of the sales calls notes are relevant to establishing if Bayer’s Mirena campaign was so pervasive that any doctor, including the Plaintiff’s, would fail to pay attention to warnings about the product’s side effects. Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated cum laude from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here

When Is a Request For Discovery Overbroad and of Speculative Relevance?

Overbroad and unwieldy discovery requests will not be tolerated and will be denied by the courts.  A party may not indiscriminately pursue wholesale production of discovery materials, especially when the party fails to provide any justification for the expansive discovery request.  Instead of allowing such overbroad discovery, the courts will limit the request to certain materials or agreed upon search terms. In Capital Ventures Int’l v. J.P. Morgan Mortgage Acquisition Corp., Capital Ventures International (“Capital”), the plaintiff, moved to compel J.P. Morgan Mortgage Acquisition Corp. (“J.P. Morgan”), the defendant, to provide further responses to its requests for production.  Capital sought the testimonial materials from all other investigations and litigations regarding JP Morgan’s residential mortgage-backed securities (“RMBS”) practices, all materials already produced in other RMBS actions or investigations, and several other discovery related requests.  In response, JP Morgan provided less burdensome alternatives to Capital’s requests. The court found that Capital’s indiscriminate requests for the wholesale production of all testimonial materials and already produced materials to be overbroad and not reasonably calculated to lead to relevant information.  The testimonial materials encompassed more than 150 million pages of documents and 153 deposition transcripts, while the materials produced in other RMBS actions and investigations included a massive document production of tens of millions of documents.  Moreover, the court found that Capital did not show a sufficient similarity between this case and all the other cases and failed to justify the expansive discovery.  The court accepted JP Morgan’s offer to produce approximately 50 deposition transcripts and to run agreed-upon search terms to sufficiently capture materials relevant to the issues in this case.  Beyond that, the court denied Capital’s remaining requests for testimonial materials and documents produced. The requesting party should avoid submitting overbroad requests for discovery that are not reasonably calculated to produce documents relevant to the issues in the case.  Several alternative strategies that can be learned from Capital Ventures International are:  (1) utilize programs that run search terms to capture relevant materials; (2) limit requests to certain relevant materials; and (3) provide sufficient justification for discovery requests that are potentially overbroad.           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 Kind of Paper Trail Is Inside Your Computer? Deleting It Is Not As Simple As Pressing Delete

Have you ever wondered what happens to electronic files when you press the delete button? Or what happens when you put them in the “e-trash?”  You may be surprised to find out that getting rid of electronic material is not as easy as it may seem.  And in many cases, actually deleting or tampering with electronic files or data can cause a great big legal headache. The case of First Sr. Fin. Group LLC v. Watchdog explores and explains the issues that can arise when a person tries to permanently delete or tamper with electronic material that should have been protected and preserved for trial. Here, Defendant was asked to preserve the computer she used to make allegedly disparaging and defamatory remarks under her pseudonym, “watchdog.”  The problem is that the computer was some how wiped clean of all electronic data after she was asked to it turn over to the experts. Now, let’s back track for a moment.  Why is it such a big deal that data was deleted?  Don’t people delete files all the time?  The key to this problem is that electronic files and data can’t just be deleted unless very deliberate actions are taken. When a file is technically “deleted,” it is simply hidden in the background of the computer and marked as, what we will call, disposable data.  Then, when the computer runs out of room to store more data, the disposable data is overwritten. Now, this doesn’t mean there is absolutely no way to wipe the data from a computer. As the saying goes, if there is a will, there is a way! (Even is the way is frowned upon and could present major legal repercussions.)  In this case, someone used two programs called Erase Pro and CCleaner to effectively wipe MOST of the data from the computer involved in the case. In legal speak, this is called spoliation of evidence, and if proven, it can mean serious repercussions.  Proving a person intentionally tampered with or destroyed evidence requires proof that a person:  (1) had control over the evidence; (2) the evidence had relevance to the claim; (3) actually suppressed or withheld the evidence; and (4) that person had a duty to preserve the evidence. In this case, the judge held Defendant was liable for the spoliation of the evidence because Defendant met all of the above factors.  However, factors 2 and 3 are particularly relevant to eDiscovery. In regards to the second element (whether the computer data was relevant to the claim), the judge turned to the data fragments recovered by the expert.  When a computer is wiped clean with Erase Pro and CCleaner, it still leaves behind fragments of data, which are like pieces of a ripped up letter.  In this case, the Judge determined that the data fragments provided enough information to show that the computer data was relevant to the case. As such, the second element was satisfied. In regards to element 3 (whether the data was actually suppressed or withheld), the Judge’s main inquiry revolved around whether the use of CCleaner and Erase Pro is considered intentional.  As you might imagine, it was pretty obvious that the use of two separate types of software with the distinct purpose to clear the computer of data is an intentional act.  As such, the third element was satisfied. The Defendant got lucky with a minor sanction of a fine, paying for the computer expert, and paying the other parties attorney’s fees related to the investigation of the computer.  However, this was nothing compared to those available for spoliation charges.  In more serious cases, the judge could hold that an adverse inference be drawn from the missing evidence, or the party could pay all fees related to the case.  In the most extreme cases, the Judge could choose to dismiss the case or find the case in favor of opposing party. Overall, when it comes to electronic data there is one thing to remember.  Electronic data is extremely difficult to get rid of, and actually getting rid of it can mean serious legal consequences. Victoria O’Connor Blazeski (formerly Victoria L. O’Connor) received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015.  Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting.  Victoria is a former D3 college basketball player, and she has an interest in tax law and civil litigation.  After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey.   Want to read more articles like this?  Sign up for our post notification newsletter, here.

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.

Hiding Bank Account Records Can Be Criminal—Not Just For the Mob!

During the course of discovery, plaintiff Luellen requested that defendant Hodge  produce bank account records.  Hodge failed to produce the bank account records, claiming that the bank, Capital One (and Charter One), had destroyed these records already. Luellen argues that Hodge was aware that the records were being sought for discovery and deliberately allowed the records to be destroyed. Luellen argues that Hodge had two different ways of being aware that the records were relevant to litigation and thus had a duty to preserve the records. First, Hodge was served with Luellen’s interrogatories, requesting information relating to bank accounts in Hodge’s name. Second, Hodge filed a motion for a protective order requesting that the Court quash a subpoena directed to Charter One. The fact that Hodge sought a protective order regarding the bank indicates knowledge that the bank records were sought for discovery. In addition, Luellen claims that in filings dated February 27, 2012, Hodge made statements indicating his awareness of Luellen's pursuit of information regarding Hodge's personal accounts. The argument for spoliation of the bank records is based on the reasonable assumption that if Hodge had directed Charter One to preserve his records when he was served with the first set of interrogatories, then the relevant records would not have been destroyed in accordance with the bank's record retention policy. In a spoliation motion, the party must show that:   (1) the party charged with destroying the evidence had an obligation to preserve it; (2) the records were destroyed with a “culpable state of mind”; and, (3) the destroyed evidence was relevant to the party's claim or defense. In reference to the first element, the court found that “a common sense understanding of the relationship between an account holder and a financial institution leads to the conclusion that Hodge had sufficient control over the documents to be able to direct their preservation.” Hodge should have directed the bank to preserve the records. In reference to the second factor, that the records were destroyed with a culpable state of mind, the court finds that Hodge’s failure to prevent the bank from destroying the records was negligent but not bad faith. The court finally holds that severe sanctions are not warranted in this case because Luellen has not shown that Hodge's failure to preserve the Charter One account records were done in bad faith or that Luellen had been severely disadvantaged by the destruction of the records. Hodge was directed to reimburse Luellen's costs and expenses in the amount of $18.00. The takeaway message here is that while you are in control of bank records, if you can show that you did not act in bad faith when you failed to prevent the banks from destroying the records, you could avoid a spoliation charge. But beware, it is better to anticipate this and prevent it by telling your bank to keep all your records! Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated cum laude from UCLA and completed graduate work in Biomedical Science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Is “Discovery On Discovery” Improper?, Part 2

In Freedman v. Weatherford Int’l, Ltd., Weatherford hired law firm Latham & Watkins to review allegations of security fraud made to Weatherford’s whistleblower hotline. Latham found no evidence of fraud. However, a second investigation was conducted by Davis Polk & Wardwell, LLP. Plaintiff’s alleged that Davis’s second investigation reveal that Latham actually discovered evidence of wrongdoing. Plaintiffs sought reports comparing the results of Weatherford’s production with search terms and productions related to the two investigations and search terms proposed by the plaintiff, in order to test the adequacy and reasonableness of Weatherford’s initial production. Weatherford objected, noting that Plaintiff had no legal basis for its request and its requested production was “hugely burdensome.” The District Court for the Southern District of New York held that the plaintiff’s request was “outside the bounds of Rule 26 of the Federal Rules of Civil Procedure . . . [because they did] . . . not proffer an adequate factual basis for their belief that the production [was] deficient.” Plaintiff’s claim that Weatherford’s production was deficient because 85% of the pages produced related to different case was too conclusory. Furthermore, the Court was not surprised that Weatherford used dramatically different search terms here compared to search terms used in the two investigations and a related action, because of the differing class periods and varying false statements. The court also addresses arguments related to Subject matter waiver and the crime-fraud exception of the attorney-client privilege, but these arguments were not related to e-discovery. Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Can Attorney-Client Privilege Be Used As Both A Sword And A Shield? No, Not When Attorney-Client Privilege Is Being Used As A Litigation Strategy

Attorney-client privilege is a complex and often misunderstood aspect of discovery. This privilege generally protects a party from being compelled to disclose confidential correspondence between the party and the party’s attorney. The traditional purpose of attorney-client privilege is to serve as a shield to prevent a party from being forced to turn over the strategies, opinions, and work product of an attorney. However, it is possible, under the right circumstances, for a party to waive the privilege in order to prove a fact vital to the party’s case. Such was the circumstances in Cormack v. United States. In this case, the plaintiff claimed that a mail-sorting system used by the United States Postal Service (USPS) is infringing on his patent for the device. The USPS and the manufacturer of the mail-sorting system, Northrop Grumman, claimed that the mail-sorting system utilized by the USPS is an independent creation. The issue in the case became the date on which the plaintiff conceived the invention and whether that date was earlier than the date on which the USPS’s manufacturer conceived the invention. The defendant was able to prove conception of the idea in July 2004. The plaintiff proceeded to waive attorney-client privilege and disclose correspondence with his attorney regarding applying for a patent for the mail-sorting device dated November 2003. After the disclosure by the plaintiff, the defendant submitted a motion to compel the plaintiff to turn over all other documents being withheld under the guise of attorney-client privilege. The court stated that the proper standard for compelling privileged information is “all other communications relating to the same subject matter.” The court was particularly concerned with the concept of fairness stating, “the aim is to prevent a party from disclosing communications supporting its position while simultaneously withholding communications that do not.” In this case, the subject matter was determined to be all documents regarding the date of plaintiff’s conception of his mail-sorter idea. The plaintiff sought to maintain privilege for numerous communications between himself and his attorney both before and after the date a patent was filed for. The court stated that the plaintiff must disclose any documents regarding conception of the mail-sorter regardless of the date on which the communications were created. The court specifically stated, “[the plaintiff’s] privilege waiver to apply to communications related to the date of conception, date of reduction to practice, and due diligence, generated both before and after the filing of the patent application.” The court did however create a distinction between communications regarding applying for the patent and emails regarding defending the patent. The court also held that the plaintiff has no obligation to produce documents and communications attendant to patent prosecutions relating to the other topics. Emails between the plaintiff and his attorney leading up to the prosecution of the patent were also deemed to be protected by privilege. It is imperative to consider the evidentiary value of all documents relating to the same subject matter before waiving attorney-client privilege. If you seek to admit certain documents regarding a certain subject matter covered by attorney-client privilege, all documents relating to the same subject matter must also be turned over to your opponent. Courts are concerned with notions of fairness and will generally not allow a party to selectively waive privilege in order to use it as a sword and a shield. Before waiving privilege, separate documents into distinctions of subject matter, do not make arbitrary distinctions between documents. Then weigh the potentially beneficial and potentially harmful value of all the documents relating to the subject matter in question. Once the value has been determined, only waive the privilege if, on the whole, the documents are clearly beneficial. Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently Daniel is serving as a legal intern in the Juvenile Justice Clinic. After graduation Daniel will clerk for a trial judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here

Recycling—Helps the Earth, Saves Lives, and Destroys Electronic Evidence

“Recycle,” “conserve,” “waste,” and “pollution” are terms that were implanted into the minds of each of us at a young age and are now they are being instilled into companies worldwide as a measure to reduce operational costs. Companies such as JPC Equestrian, Inc. have begun recycling and reusing “cleaned” electronic devices from former employees, which would normally not be an issue if companies had a company-wide server or cloud-based software that held all of the information stored within the device. However, since JPC Equestrian, Inc. does not have a company-wide server, once an employee leaves, the company has a procedure in place to “scub” the computer and reassign it to another without care for the electronic information within the device. In Kearney v. JPC Equestrian, Inc., Mark Kearney, a former employee, sued JPC Equestrian, Inc. (“JPC”) for the failure to produce emails relevant to the claim he is asserting. Kearney commenced this lawsuit against JPC when they wrongfully terminated his employment, and breached his sales agreements by either failing to pay him sales commissions or by paying reduced commissions that did not satisfy contractual obligations. Kearney through the discovery process received email documentation from numerous employees and executives dating back to 2005. The discovery submission included JPS turning over 250 pages of documents relevant to the parties and situations involved. However, Kearney requested information for "all relevant emails," which in his original discovery requests, were defined as "[a]ll emails that mention, or refer to the Plaintiff, however, marginally, in any way shape or form from 2002 through 2010." Kearney v. JPC Equestrian, Inc., 2014 U.S. Dist. LEXIS 153975, *5 (M.D. Pa. Oct. 30, 2014). Kearney was missing three years of discovery. Kearney only received documentation dating back to 2005 because the information dating back to 2002 did not exist or does not exist anymore and cannot be recovered. JPS claims that the information cannot be recovered because the computers that would have held that data were wiped clean and erased before the device was transitioned to another employee. JPS has found loopholes around document retention and the court agreed. The court held that JPS’ procedure of document retention was acceptable and the court has, “no basis to conclude that the defendants have withheld responsive documents, or that there is any basis to compel a further response regarding potentially relevant email communication.” Id. at *7. Unfortunately, this holding allows companies an avenue to discard potential and relevant information pertaining to potential litigation that otherwise would have been saved if not for the guise of recycling and employee cost saving. This holding should be reversed and JPS should be penalized for its failure to maintain adequate records for an appropriate period of time. The court should not excuse a company, no matter the size or market capitalization, for not maintaining the electronic information of employees who work within the company. Not only is that bad preservation practice, its poor business practice. Recycling and the protection of our planet is important but those ideals should not give rise to loopholes of common electronic document preservation practices, which are becoming as worldwide and important as protecting the planet itself. Timothy received his B.A. from Rutgers University in 2011. He began his post-college life working in Trenton, New Jersey, at a lobbying and non-profit management organization before attending law school in the fall of 2012. He will receive his J.D. from Seton Hall University School of Law in 2015. Timothy has had a diverse set of experiences during his time in law school and has found his calling in Tax Law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

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