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.

Authored By: Courtney O’Brien

Citation: Moreno v. Ostly, 2011 WL 598931 (Cal. Ct. App. Feb. 22, 2011)

Employee/Employer Implicated: Counsel, Client

e-Lesson Learned: Failing to disclose to the Court, and opposing counsel, that your client no longer possesses the cell phone from the relevant time frame, opposing the discovery request as too broad when you know the phone no longer exists, and then providing the new phone for inspection as if it was the old phone, will likely result in sanctions for misrepresentations to the court, and for wasting time and money.

Tweet This: Tell the Court that a Client doesn’t have the old cell phone – don’t try to pull a fast one and produce the new phone

Don’t knowingly produce incorrect electronic devices for discovery! When opposing counsel requests production of your client’s cell phone from the relevant time period for inspection, it is your duty to provide accurate information regarding the whereabouts of the phone. 

Authored By: Lauren Winchester

Citation: Estate of Carlock v. Williamson, No. 08-CV-3075, 2011 U.S. Dist. LEXIS 7596 (C.D. Ill. Jan. 26, 2011).

Employee/Employer Implicated: Counsel

e-Lesson Learned: Although the right to public access of court proceedings is important, when documents that should have been protected by the attorney client privilege are inadvertently disclosed in discovery and then sealed, the press is not able to assert that right and intervene.

Tweet This: District Court Denies Press Group’s Motion to Intervene under Rule 24(b) Because Sealed Documents were Inadvertent Disclosures.

Despite the importance of the general right to public access of court proceedings, a federal judge in Illinois ruled that a media group could not intervene in a lawsuit because, although it had standing, intervention would cause undue prejudice.

Authored By: Mark Keddis

Citation: Ron Paul 2012 Pres. Campaign Comm., Inc. v. John Does, 1–10, No. C 12-0240 MEJ, 2012 U.S. Dist. LEXIS 8371 (N.D. Cal. Jan. 25, 2012)

Employee/Employer Implicated: Counsel for the 2012 presidential campaign committee of U.S. representative Ron Paul and anonymous internet users

e-Lesson Learned: Anonymous internet users and presidential campaign committees are on equal procedural footing when an ex parte expedited discovery request is filed, but courts will allow re-filing if the original request does not meet the legal standards and proper evidentiary support to show that the administration of justice outweighs the prejudice to the other party.

Tweet This: California Court Protects Identifies of Anonymous Internet Users But is Lenient with Re-filing of Expedited Discovery Request

Many individuals believe that matters pertaining to the United States Presidential Election are paramount to all other considerations.  This, however, is not always the case and even those who create problems for campaign committees from behind the guise of internet anonymity are entitled to equal rights under the judicial system.   Ex parte applications for expedited discovery are no exception according to the recent ruling in Ron Paul 2012 Pres. Campaign Comm., Inc. v. John Does, 1–10 because courts have a set list of criteria to consider when assessing the existence of “good cause” for expedited discovery to identify internet users.

Authored By: Jennifer A. Connelly

Citation: Joseph Oats Holdings, Inc. v. RCM Digesters, Inc., 409 Fed. Appx. 498 (3d Cir. 2010)

Employee/Employer Implicated: Owner/Executive, Information Technology Manager, Misc. Employee.

e-Lesson Learned: After litigation was initiated, plaintiff, a joint venture company, downloaded and copied files from a VPN with defendant pursuant to a litigation hold initiated by co-plaintiffs. The Third Circuit held that this behavior is not a clear-cut case of violations of the anti-hacking statutes.

Tweet This: Parties to a Joint Venture May be Able to Copy Files After Dissolution

In Joseph Oats Holdings, Inc. v. RCM Digesters, Inc., the United States Court of Appeals for the Third Circuit vacated a District Court decision which held that plaintiffs had wrongfully copied defendants electronic information in violation of the California Unfair Competition Law. The dispute stemmed from a joint venture agreement between the parties which was repudiated by defendants shortly after its inception. In September 2006, the plaintiffs commenced an action alleging trademark infringement, unfair competition, breach of contract, etc. In October 2006, plaintiffs attorney sent a litigation hold letter to defendants, demanding the preservation of (among others) electronic documents related to the litigation.

Authored By: Catherine Kiernan

Citation: Managing Discovery of Electronic Information: A Pocket Guide for Judges (Second Edition)

Tweet This: Just Released! “Managing Discovery of Electronic Information: Pocket Guide for Judges” Review! (Part 3)

Welcome back for the third and final part of our series summarizing and highlighting the most important parts of the new electronic discovery pocket guide for federal judges.  Part One focused on the volume of electronic discovery now being used in judicial proceedings as well as proper procedures for Rule 16 conferences and the scope of electronic discovery under Rule 26.  Part Two focused on cost-shifting, subpoenas and implicated third parties, and form of production. Finally, Part Three focuses on privilege and waiver, preservation, spoliation, and sanctions.

Authored By: Suzanne Janusz

Citation: Bensel v. Allied Pilots Ass’n, 263 F.R.D. 150 (D.N.J. 2009)

Employee/Employer Implicated: Counsel, Service Provider

e-Lesson Learned: A party’s inadvertent or accidental destruction of documents or other information is insufficient for a finding of spoliation and order of sanctions absent the intent to destroy or suppress evidence.

Tweet This: Bad Faith Intent Is an Essential Ingredient for a Finding of Spoliation

Be forewarned: your adversary’s mere destruction of documents is not enough for a court to order sanctions based on spoliation without proving bad faith. In Bensel v. Allied Pilots Association, 263 F.R.D. 150 (D.N.J. 2009), the plaintiffs, former TWA pilots, sought “smoking gun” evidence to prove that their union breached its duty of fair representation during the TWA-American Airlines asset acquisition.  One of the defendants, the Air Line Pilots Association (“ALPA”), acted as the pilots’ exclusive representative during the asset acquisition.  An eight-year legal battle spawned the plaintiffs’ Motion for Sanctions before the court.   

Authored By: MH

Citation: Smith v. Trusted Universal Stds. in Elec. Transactions, Inc., 2011 U.S. Dist. LEXIS 26757 (D.N.J. Mar. 15, 2011)

Employee/Employer Implicated: Internet Service Provider

e-Lesson Learned: If an email service provider blocks your outgoing email, the courts aren't going to help you out.

Tweet This: You’ve Got [NO] Mail!

In today’s society individuals are increasingly turning to the courts and the justice system to remedy every wrong.  Lawsuits are brought for any and every reason. You always hear the stories like the woman who sued a fast food restaurant for causing weight gain or McDonalds for burning them with extremely "Hot Coffee." In the present case, plaintiff sued Comcast, Microsoft, and other Internet service providers for improperly blocking his outgoing spam mail. When plaintiff first brought the lawsuit under various state law claims and federal statutory claims, the court dismissed all the claims for failure to state a claim upon which relief may be granted (12(b)(6) motion). Plaintiff then filed a second amended complaint, and again the defendants moved to dismiss the claims. The court converted the motion into a motion for summary judgment and granted the motion on defendants’ behalf.

Authored By: Jennifer A. Connelly

Citation: VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 2012 N.Y. App. Div. LEXIS 559 (N.Y. App. Div. Jan. 31, 2012).

Employee/Employer Implicated: Owner/Executive, All Company Employees, Counsel, IT Personnel.

e-Lesson Learned: Under Zubulake, which remains the standard governing electronic discovery in New York, a party must suspend all document or e-mail destruction policies. A company must place a litigation hold on relevant materials and ensure they are not destroyed or face sanctions. Oral instructions to employees to preserve, without more, do not comport with this standard.

Tweet This: Parties must deactivate document destruction policies as soon as they reasonably anticipate litigation-OR ELSE

The New York Supreme Court, Appellate Division began it’s analysis in VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 2012 N.Y. App. Div. LEXIS 559 (N.Y. App. Div. Jan. 31, 2012) by affirming that the standard governing preservation of electronically stored information set forth in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) continues to govern electronic discovery in New York. The VOOM Court cited Zubulake for the standard regarding corporate document retention or destruction policies: “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.” The VOOM Court rejected the contention of defendant EchoStar that the trigger of the Zubulake retention standard, “reasonable anticipation of litigation” was unworkable. Rather, the Court indicated that a corporation’s obligation to suspend a document destruction policy in favor of retention for those documents related to the possible litigation begins at “such time when a party is on notice of a credible probability that it will become involved in litigation.”

Authored By: Austin O’Malley

Citation: Promote Innovation LLC v. Roche Diagnostics Corp., 2011 WL 3490005 (S.D. Ind. Aug. 9, 2011).

Employee/Employer Implicated: Plaintiff, Promote Innovation, objecting to defendant’s request that eDiscovery costs be taxed to plaintiff

e-Lesson Learned: Per 28 U.S.C. §1920, District Courts have discretion in allowing prevailing parties to recover costs associated with eDiscovery actions.

Tweet This: Courts May Force You To Bear Costs Stemming From Unnecessary eDiscovery Actions

As a party in litigation, one may often be exposed to significant costs associated with electronic discovery. Fortunately, U.S. Courts have significant discretion when shifting costs. Since eDiscovery is often an expensive process, prevailing parties often request, a request often granted, to have the Court force the losing party to pay the costs associated with the eDiscovery. 28 U.S.C. §1920(4) authorizes Courts to tax as costs any “fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” Within this section of the statute, Courts find their authority to tax costs for electronic discovery to losing parties. Although Courts have discretion in determining whether or not to shift the costs, they will follow a burden shifting process in this determination, as seen in the recent case Promote Innovation LLC v. Roche Diagnostics Corp., 2011 WL 3490005 (S.D. Ind. Aug. 9, 2011).