eDiscovery

When Can A Party Access Private Facebook Posts From A Previously Deleted Account?

This action arose after a truck driver’s alleged negligence resulted in a fatal motorcycle accident. Plaintiff, as widow and “tutrix” of the deceased’s minor child, sought the truck-driver Defendant’s social media information through discovery and limited her request to four months following the date of the accident. 

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Watch Out, Facebook Posts and Texts Can Be Discoverable Material!

In this case, the Plaintiff Ms. Veronica Painter is suing her employer, Defendant Aaron Atwood, D.D.S. Painter claimed that while she was at work, the dentist climbed on top of her with his pants down and held her down. Painter suffered extreme emotional distress as a result. The defendant argues that he merely tickled her and that they had a consensual sexual relationship. The discovery issue in this case arises because the defendants asserts that the plaintiff and her two main witnesses intentionally destroyed text messages and Facebook posts that contradict the plaintiff's claims and deposition testimony. Specifically, the defendants allege that while the plaintiff was employed at Urgent Dental, she posted Facebook comments and pictures regarding Urgent Dental and the Atwood’s, including comments about how much she enjoyed her job, how Urgent Dental was a great place to work, and how Dr. Atwood was a great boss and she enjoyed working with him. The defendants assert that they know these posts existed because Dr. Atwood's wife, Kelly Atwood, was friends with the plaintiff on Facebook at the time.

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Not a Party To the Case? You May Still Have to Preserve.

Deciding what should be preserved and who should preserve it can be difficult when litigation first begins.  However, do not be fooled.  A party can feel the wrath of the Courts if an interested non-party fails to preserve information leading up to trial. In the case of Pettit v. Smith, the court found that a state agency had a duty to preserve evidence even though the agency was not a party to the case.  This case involved a claim of excessive force by an inmate against the alleged attacking officer, supervising officers, and the state of Arizona.  However, it did not include the agency that oversaw the state prison, which is referred to as ADC.  The plaintiff claimed that the defendants and ADC should have taken measures to preserve evidence once they had notice of the litigation.  On the other hand, the defendants claimed that ADC had control over the missing evidence, and the defendants should not be held responsible for the disappearance of evidence they did not control.

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Expert Reports: When Must You Disclose?

When Robocast saw the new UI (user interface) for the Microsoft Xbox 360 “Video” and “Home” channels, Windows 8 Xbox Music Box software, Bing.com, MSNBC.com, and MSN.com, all which utilized a video playlist or a changing tile function, they thought “hey, we have the patent on that UI.” While there are many nuances contained within this case as to the characteristics of each company’s UI, the important point to take away from this is that Robocast saw something in the Microsoft UI that they believed fell under a patent they had filed in 2006. Basically, Robocast saw that the new Microsoft UI operated in the same form and function as that which Robocast had previously patented. Therefore, Robocast brought suit for patent infringement against Microsoft. This case is fraught with technical jargon and in depth explanations of the video playlist and changing tile functions employed by each company’s UI. However, this is an electronic discovery blog so I will give you what you came for. The electronic discovery issue presented itself in this case in the form of an expert report. Robocast had retained Professor James T. Berger to gather information and prepare reports regarding relevant information so that he would be able to form an opinion and testify as to the amount of damages owed to Robocast by Microsoft.

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Copying Documents = Conversion?

Prior to this case, Quintero Community Association (hereinafter “QCA”) sued Hillcrest Bank (hereinafter “HB”) under a variety of legal theories after plaintiffs sustained a loss in their investment. This is the only claim that remains. It is a claim of conversion, meaning that QCA is alleging that HB improperly took control of QCA’s property. The issue is that during an investigation into HB’s lending practices by the FDIC, an HB employee made a copy of all HB’s loan records on a portable harddrive. This employee also made a portable harddrive copy for HB’s own records. Later, the president of HB instructed the same employee to make yet another copy for HB’s attorney. QCA claims that HB violated its rights by making copies of its loan records. HB moved for summary judgment, claiming that QCA has no property interest in its records and that even if it did; HB’s copying of the records did not deny QCA its right of possession. In order to prevail on a conversion claim, plaintiff must prove that, “(1) it possesses a right in the goods or personal chattels; and (2) that the defendants exercised control over the goods or chattel to the exclusion of the plaintiff's right.” The court held that QCA does not have a property interest in HB’s records. The court reasoned that with intangible records, the plaintiff must have a present property interest in them, but here QCA merely has a right to privacy and no present property interest.  The court further ruled that HB never exercised exclusive possession over the bank records. Thus, even if QCA held a property interest in the records, HB’s actions do not constitute conversion because HB’s actions never interfered with QCA’s alleged rights to the documents. HB never asserted control over the documents in a way that excluded QCA from accessing them. QCA also argued that it is entitled to an adverse inference based on defendant’s alleged spoliation and in the alternative that it should be granted leave to amend its complaint to include a spoliation claim. The basis for the adverse inference claim is that HB allegedly encrypted the portable hard drives with the loan information in order to prevent QCA from accessing them. “[A] presumption of spoliation only arises when there is evidence of “intentional destruction indicating a desire to suppress the truth.” The court found that QCA did not meet its burden in demonstrating intentional destruction. Further, the court denied plaintiff’s request for leave to amend because it was not filed until two months after discovery closed, it would require further discovery and fees to be incurred by defendant, and the amendment would be futile.

Inadvertent Disclosures: Who Benefits?

Plaintiff Steve Pick filed suit against Defendant City of Remsen (and other defendants) alleging, among other claims, violations of constitutional rights pursuant to 42 U.S.C. § 1983. Pick served the city with a discovery request. The city then produced 440 pages of documents, including 183 pages of e-mails. Some pages contained more than one email. The defendant’s inadvertently disclosed an email that was originally sent to six privileged recipients. Within thirty-four minutes of discovering that the email had been inadvertently produced, defense counsel contacted the plaintiff’s counsel. Defense counsel explained that the email was mistakenly produced and was protected by attorney-client privilege. Defense counsel asked that the email be destroyed. The plaintiff’s counsel refused. Defendants’ filed a motion request that the court order the email’s destruction as an inadvertently produced privileged document. Applying the middle-of-the-road approach, the Magistrate Judge held Defendants had not waived attorney-client privilege by the inadvertent disclosure, and ordered the email to be destroyed. Plaintiff appealed.

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What Should Related Foreign Entities Do When Facing Spoliation Sanctions After Providing The SEC With A Complete Image Of Its Corporate Servers? Comply With Court Orders.

Regulatory leviathan incompetency may lead to preclusion sanctions. But this doesn’t matter if the sanctions preclude two directors of alleged foreign shell entities from “offering testimony, affidavits or declarations in connection with a dispositive motion or trial,” and the sanctions are partially based on the very same two directors’ refusals to offer such testimony, affidavits or declarations in connection with depositions. In other words, the defendants have no interest in testifying, are being reprimanded for not testifying, and their punishment is to preclude them from testifying. (“Continue Reading…”) Here, the SEC froze the assets of more than a half-dozen entities which conduct business from Hong Kong based on pyramid scheme allegations. Prior to the freeze, at least a few of the defendant entities used third-party vendors to control their IT departments and these defendants were no longer capable of paying the outside vendors, post-freeze. During the course of discovery, the defendants, now without an IT department, provided the SEC with a “complete image of all information maintained on the corporate server”. Next, the defendants, fearful of adverse action by authorities in their own nation, refused to attend depositions and instead offered to attend remote videoconference depositions. Soon thereafter, the leviathan sought sanctions for spoliation, which were later recommended. Months later, the incompetent SEC figured out how to read the original hard drive provided during discovery, which had been in the SEC’s possession the entire time. The preclusion sanction still stands because the defendants did not comply with the court order to attend the depositions. In the future, if you’re a foreign businessman who finds yourself under the SEC’s radar, remember to formally request depositions to be electronically conducted, formally request asset freezes to be lifted so your third party vendor can assist the incompetent SEC to understand the information you provided in discovery, or ignore the laws of your home state, put your entire family in jeopardy, and attend the deposition. Law Suit Exposer, a Seton Hall University School of Law student (Class of 2016), focuses his studies in the area of NJ foreclosure defense.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

What are the Relevance and Mens Rea Requirements for Spoliation Sanctions?

Should negligent destruction of evidence and intentional destruction of evidence be punished the same? That is one of the issues brought up in Alter v. Rocky Point School District. This case involves Lisa Alter (“Plaintiff”), a former second grade teacher and Principal, suing her former employer, Rocky Point School District (“Defendant”), for workplace discrimination.  The first discovery dispute arose when the Plaintiff filed its first motion to compel discovery on October 1, 2013.  Plaintiff sought to compel discovery of ESI, specifically emails between employees of Defendant.  The Court granted Plaintiff’s motion. Subsequently, Plaintiff filed a second motion to compel discovery and for sanctions.  Plaintiff alleged that Defendant did not comply with the Court’s instructions.  Plaintiff argued that sanctions should be imposed against Defendant for: (1) failing to properly institute a litigation hold; (2) failing to complete a good faith search of ESI; (3) failing to sufficiently oversee ESI searches; (4) and for spoliation of evidence. The main issue in this case was whether the Court would impose sanctions on Defendant for spoliation of evidence.  A party seeking sanctions for spoliation of evidence has the burden of establishing: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support the claim or defense. In Alter, the Plaintiff clearly established the first element.  It was clear that Defendant had an obligation to preserve the evidence at the time it was lost.  The Plaintiff was seeking emails between Defendant’s employees.  Defendant, however, failed to institute a litigation hold until nearly two and a half years after the Plaintiff filed her Notice of Claim in November 2010.  As to the second element, however, the Court was not convinced that the Plaintiff established that the records were destroyed with a culpable state of mind.  The Court did find it “especially troubling” that the Defendant did not institute a litigation hold until nearly two and a half years after the initiation of Plaintiff’s lawsuit. The Court was clear that the Defendant was negligent in failing to preserve discoverable information.  That being said, the Court was also clear that negligence is not enough to prove a culpable state of mind.  The Court found that the Defendants’ actions, while negligent, were not intentional.  As a result, the Court concluded that there was no intent to spoliate material evidence.  Plaintiff also failed to establish the third element of her spoliation claim.  The third element requires that the lost information be relevant to the party’s claim.  Plaintiff failed to set forth, with any degree of specificity, that the lost materials would have been relevant or helpful to her claim.  Relevance cannot be established solely on the basis of conjecture.  Here, Plaintiff failed to meet her burden to set forth specific facts to support her claim.  The Court here found that there was no spoliation of evidence.  Despite the finding of no spoliation, the Court was still troubled by the actions of the Defendant and the actions of Defendant’s counsel. As a result, the Court imposed a monetary sanction of $1,500 to be borne equally by Defendant and the law firm that represented Defendant at the initiation of the lawsuit. Kevin received a B.A. in History from Princeton University in 2012.  He will receive his J.D. from Seton Hall University School of Law in 2016.

Document Refinement and its Apparent Prejudices

On December 16, 2015, the Honorable Susan D. Wingenton granted GDC’s Motion to Quash Defendants William Baroni and Bridget Kelly’s subpoena duces tecum, which asked the GDC to produce “Any and all handwritten or typed notes, stenographic transcripts and audio and/or video recordings of witness interviews conducted by Gibson Dunn during its representation of the Office of the Governor of New Jersey from on or about January 16, 2014 to the present.”  Defendants also included a request to produce any and all metadata and document properties for all typed notes and interviews as well.  In her Opinion, Judge Wingeton took certain issue with the ethically questionable document preparation methods of the GDC, yet ultimately decided to grant the Motion to Quash.  The GDC had a somewhat perplexing response to Defendant’s first requests as to notes, transcripts and recordings of witness interviews conducted by the GDC during its representation of the OGNJ.  They claimed that no such materials currently existed.  Here, the GDC deviated from normative interview information collecting techniques; here witness interviews were summarized electronically by one attorney while the interviews were being conducted and then edited electronically into a single, final version.  This differed greatly from their former methods of practice, where contemporaneous notes were taken by GDC interviewers and that those notes were preserved after the summaries were completed.  By contrast, the GDC clearly intended that contemporaneous notes of the witness interviews and draft summaries would not be preserved, as they were overwritten during revisions and in preparing the final summary.  The Court found this to be “unorthodox” at the least, and noted its disapproval of their actions, likening them to have the same effect as deleting or shredding documents.  Unfortunately, however, the Court had no reason to doubt the GDC’s honesty with respect to their methods or their responses to Defendant’s request for documents.  The Court did sympathize with the both Baroni and Kelly, but granted the motion anyway. It is clear to see that the GDC’s actions, though ultimately condoned by the Court, were not done with the intent to deliver a full and honest discovery of the requested materials.  While the Court may have deemed such actions as legal, GDC’s document preparation methods raise many ethical implications, and could have clearly been used to destroy important information that Defendants here were entitled to.  Indeed, this method of refining interview summaries and information could have easily omitted details the defense may have found useful.  Doing so did not provide the defense with the transparent information they should have received by request; instead they had to make due with the GDC’s white-washing of the information.  In all, the GDC should have been more responsible and fair with the way it conducted and kept record of it’s interviews. This method of refining information can only seek to unfairly hurt their opposing counsel.  Garrett Keating received his Bachelor’s degree from Trinity College (2011) and majored in both Political Science and Public Policy and Law; he will receive his J.D. from Seton Hall University School of Law in 2016.  He has worked primarily in the legal fields of Medical Malpractice, Personal Injury, and Class Action law

When Will Protective Coding Finally See Its Day In Court?

The Southern District of New York Magistrate Judge Peck may have changed the way attorneys view discovery procedures forever. In an unprecedented ruling, Judge Peck held in Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012) that technology assisted review (“TAR”) is “an acceptable way to search for relevant ESI in appropriate cases.” To follow up this historic step, Judge Peck ruled again in 2015 that TAR is appropriate and should not be discouraged or held to a higher standard that could deter parties from using this cost and time-effective tool. TAR uses technology and statistics to determine which documents or data will be relevant to the subject matter of the case at hand. If the topic or issue is “attorney-client privilege regarding a work-monitored email address,” for example, the system would scan a large number of documents or a sample size and find all documents bearing the relevant information. This allows the producing party to save time and cost if personnel required to scan that many documents the same amount of time. In the 2014 Tax Court case Dynamo Holdings Ltd. P'Ship v. Comm'r of Internal Revenue, 143 T.C. 9, 2014 WL 4636526 (T.C. Sept. 17, 2014), opponents of this system argued that incomplete responses to discovery are inevitable. To that complaint, the court in that case found that the party may simply file a motion to compel if that belief is supported, a notion with which Judge Peck agrees. “In, essence, what the parties are asking the Court to consider [is] whether document review should be done by humans or with the assistance of computers.” The more prominent question presented to Judge Peck in Rio Tinto was the level of transparency and cooperation required from the parties “with respect to the seed or training set(s).” The training or seed sets are the sample set of documents used to code the entire set and label documents as relevant or irrelevant to the case.  Judge Peck suggested that the producing party turn over the entire seed set, regardless of the label, to ensure transparency and function as the potential resolution to this uncertainty. Currently, there is a debate amongst courts as to whether the seed set should be ordered to be produced, or whether the parties must generally agree to such production. The Judge was of the opinion that even this debate could be put to rest with a few cooperation-based measures, stating that “requesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as non-responsive.” While the Rio Tinto court did not decide on the actual transparency rules because the parties stipulated to TAR use, the Court noted that it was important to opine on this matter for future cases, as TAR is a valuable tool in e-discovery procedures. Going forward, it will likely become necessary for courts to rule on whether or not TAR may be compelled and in what way. It is foreseeable that cases involving high levels of distrust among parties will lead to such an opportunity. Svjetlana Tesic is a magna cum laude graduate of Montclair State University, where she received her B.A. in Jurisprudence, with a minor in Business. She will receive her J.D. from Seton Hall University School of Law in 2016, where she serves as Student Bar Association President and is a member of the Moot Court Board. After graduation, Svjetlana will clerk for a trial judge of the Superior Court of New Jersey in the Passaic County Vicinage. 

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