Authored By: Catherine Kiernan

Citation: Gatto v. United Airlines, 10-cv-1090 (D.N.J. 2013)

Employee/Employer Implicated: Document custodians, defendants, plaintiffs, counsel

e-Lesson Learned: Once a party knows that a social networking account, like Facebook, is relevant to the litigation, it must be preserved. Even accidentally deleting the account by leaving it deactivated for too long can be interpreted by the court as the intentional destruction of evidence leading to an adverse inference for the jury.

Tweet This: When deactivating your Facebook account becomes the intentional destruction of evidence

Deactivating your Facebook account and passively allowing it to be permanently deleted can be considered the intentional destruction of evidence.  The Plaintiff in Gatto is now facing a potentially damaging adverse jury instruction if he takes his case to trial.  In Gatto, a ground operations supervisor at JFK Airport was injured in his course of employment when one of the United Airline’s planes bumped into a set of fueler stairs, causing them to run into the plaintiff.  In his suit, Plaintiff alleges that due to the crash he has suffered various serious injuries, is permanently disabled, hasn’t been able to work since July of 2008, and his physical and social activities have been limited.  Defendants sought access to Plantiff’s Facebook account in relation to these claims.

Authored By: Chrissy Caputo

Citation: Kenney, Becker LLP v. Kenney et. al, 34 A.D.3d 315 (N.Y. 1st Dept. 2006)

Employee/Employer Implicated: In-house Counsel, Kenney Becker employee, upper-level management

e-Lesson Learned: Communications via e-mail between attorneys and their client’s employees are not automatically protected.

Tweet This: Think twice before e-mailing what you don’t want disclosed.

The brief order by the First Department Appellate Division doesn’t delve into much background (or really any background at all) as to the facts of the present case, however, it does shed some light on discovery matters. The prior order had directed the plaintiff to turn over a certain e-mail as part of the discovery, and moved the deposition of the defendant to New York instead of Florida.

Authored By: e-Discoverygirl

Citation: AccessData Corp. v. Alste Tech, GMBH, No. 2:08cv569, 2010 WL 318477 (D. Utah, Jan. 21, 2010)

Employee/Employer Implicated: Counsel

e-Lesson Learned: The German Data Protection Act and Hague Convention procedures are not applicable in a breach of contract action because a U.S. Court can order a party in its jurisdiction to produce information and the costs transmitting this information are minimal.

Tweet This: A foreign company’s information is no longer foreign to the U.S.

Just because your adversary makes a request for documents that would violate German law, it doesn’t mean you are not required to do so. In AccessData Corp., the plaintiff made several discovery requests, including a request for a production of documents, which encompassed the production of third-party personal information. The defendant objected to the request for production on the grounds that they were overly broad, unduly burdensome, and seeking irrelevant information. Additionally, the defendant claimed that the “disclosure of information relating to third parties’ identities would violate German law.”

Authored By: Stephen Bauer

Citation: Indep. Mktg. Group, Inc. v. Keen, 2012 WL 207032 (M.D. Fla. Jan. 24, 2012)

Employee/Employer Implicated: Counsel

e-Lesson Learned: Failing to produce adequate ESI can help a client’s case, but hurt a lawyer’s credibility and wallet.

Tweet This: ESI production requests still allow lawyers to play the game, but play too rough and you will get burned

Lawyers love playing “the game”: the passive-aggressive chess match of paperwork requests and time-stall battles with the opposing attorney. At first glance, botched production can look like sloppy lawyering, but in reality it can be a brilliant move in disguise. In this case, Independent Marketing Group is suing for breach of fiduciary duties, breach of contract, and other claims that imply an ugly end to the defendants’ employment. The defendants, pursuant to discovery in the suit, request information from Independent, but in doing so, find themselves on the verge of checkmate.

Authored By: Courtney L. Shanney

Citation: Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012).

Employee/Employer Implicated: Users of social media

e-Lesson Learned: Discovery requests for one’s entire personal Facebook account is overly broad, as much of what is posted is irrelevant to lawsuits; therefore, portions of an individual’s Facebook account that are not viewable by the general public are protected from discovery. But anything on Facebook that is viewable by the public is discoverable and if that material is relevant to the lawsuit, the rest of the Facebook page may not be protected.

Tweet This: Private personal social media accounts may not be entirely discoverable because they are overbroad.

We often hear that we should be careful about what we post on the internet.  But no matter how many times we hear this good advice, it seems like we have all posted something on the internet that we later regret.  Unfortunately, the internet is not a forgiving place.  And these unwanted internet posts can haunt an individual and result in serious consequences.

Authored By: Law Student 5

Citation: People v. Harris, 36 Misc.3d 868 (NY Crim. Ct. 2012)

Employee/Employer Implicated: Twitter, Inc.

e-Lesson Learned: In response to a court order, Twitter, Inc. is required to turn over your information—e-mail address and your former posts—and you can’t stop them.

Tweet This: This tweet may be subject to Court Order.

If you tweet, it’s the same as though you screamed your message out of the window. On October 11, 2011, the defendant in this case was charged with Disorderly Conduct for allegedly marching on the Brooklyn Bridge.  In connection with the Disorderly Conduct charge, New York sent a subpoena to Twitter in order to see the defendant’s account information and tweets, asserting they are relevant to an ongoing criminal investigation.

Authored By: Marco Ferreira

Citation: 150 Nassau Assoc. LLC v. RC Dolner LLC, 96 A.D.3d 676 (N.Y. App. Div. 2012)

Employee/Employer Implicated: Counsel, Client

e-Lesson Learned: eDiscovery disputes should be resolved among the parties. When disputes reach the court, judges will likely not resolve the issue in the best manner for the parties and will instead choose the easiest and most efficient option.

Tweet This: Resolve eDiscovery disputes without judicial intervention to avoid mutually unrewarding results.

It's no secret that courts prefer settlements over protracted litigation. Because the court system encounters an incredibly heavy case load, parties are heavily encouraged to resolve disputes amongst themselves. This is especially true for discovery disputes. Parties are expected to deal with any hiccups in the discovery process through negotiation and discussion between each other, with little court intervention.

Authored By: Catherine Kiernan

Employee/Employer Implicated: Executives, In-House counsel, document custodians, all levels of employees

e-Lesson Learned: Electronic communications between employees that make a mockery of company policies and practices exposed through even the preliminary phases of e-discovery can quickly erode the legitimacy of a company and expose it to serious litigation.

Tweet This: Intra-Office E-mails: What used to be unreported office gossip now potentially exposes companies to liability

Serious problems can arise when what used to be office gossip around the water cooler instead manifests in discoverable intra office e-mails.

Authored By: Tracy Azinge

Citation: Hameroff & Sons, LLC v. Plank, LLC, 36 Misc. 3d 1229(A) (N.Y. Sup. Ct. 2012)

Employee/Employer Implicated: Contract Administrator

e-Lesson Learned: Willful and contumacious destruction of relevant documents concerning reasonably anticipated litigation could cost the offending party preclusion of evidence or documentation necessary to support claims or defenses.

Tweet This: Don’t get your evidence excluded – Do not willfully destroy documentation when litigation is reasonably anticipated!

Take caution not to destroy documentation when litigation is on the horizon!  When litigation is reasonably anticipated, the parties have an affirmative obligation to ensure that documentation is not negligently or willfully destroyed.  Failing to retain relevant documentation can lead to the preclusion of evidence necessary to make your case, as it did in Hameroff & Son, LLC.v. Plank, LLC.

Authored By: Alex Weininger

Citation: In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335 (N.D. Ga. 2012)

Employee/Employer Implicated: In-house counsel, Assistant General Counsel, Outside Counsel, Internal Technology Department

e-Lesson Learned: Failing to conduct a reasonable inquiry into the completeness of discovery can subject you to sanctions and costs.

Tweet This: Sanctions and soaring litigation expenses are the true cost of Delta and AirTran’s $15 checked-baggage fee.

A lawsuit over  a policy charging plane passengers for their checked luggage has put lawyers across the country on notice as to what constitutes a “reasonably inquiry” when it comes to complying with discovery obligations.  And the lesson cost Delta and AirTran a lot more than a $15 checked-luggage fee.