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: Katlyn Ryan

Citation: Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio 2008)

Employee/Employer Implicated: Counsel

e-Lesson Learned: Failing to place a sufficient litigation hold on a computer system in anticipation of litigation can have serious financial and other consequences.

Tweet This: Protect yourself and your clients – Be timely in executing litigation holds

An attorney has a duty to preserve discovery prior to pending litigation.  Failing to properly execute a litigation hold can lead to a plethora of other issues.  Most importantly, failure can leave attorneys and their clients vulnerable. 

Authored By: Amanda Miceli

Citation: Siani v. State Univ. of New York at Farmingdale, 2010 WL 3170664 (E.D.N.Y. Aug. 10, 2010)

Employee/Employer Implicated: State University IT Department; Employees

e-Lesson Learned: When in doubt don’t delete! However, court will deny an adverse inference sanction, despite finding that defendants negligently deleted emails after the duty to preserve arose, where plaintiff could not demonstrate that the allegedly deleted emails were relevant.

Tweet This: Is it safe to delete your Groupon e-mails?

Often, when entering one’s e-mail account, a person will encounter a plethora of advertisements, chain e-mails, spam, and other irrelevant junk mail. Pursuant to their daily habit, one sifts through their mailbox in an effort to delete any hourly Groupon deals or invitations to join new dating websites, in order to find the e-mails important to their career, education, etc. However, when does a routine deletion of spam constitute a legal violation? For the average lay worker, without clear advice of legal counsel, it is difficult to discern which deletions will come back to bite you in the end during litigation.  In a 2010 case, a discrimination lawsuit exposed how a seemingly harmless deletion to clean an inbox could have resulted in a legal sanction.

Authored By: e-Discoverygirl

Citation: Viramontes v. United States Bancorp, 2011 U.S. Dist. LEXIS 7850 (N.D. Ill. Jan. 27, 2011)

Employee/Employer Implicated: Bank Manager, Entire Company

e-Lesson Learned: Unless litigation was imminent or reasonably foreseeable, a company does not have a duty to preserve electronically stored information.

Tweet This: Are you about to press the delete button? STOP and THINK - is it likely someone will sue me?

  Am I allowed to delete this? Do I have to preserve this email? When a former employee sues you for employment discrimination and requests documents that you irretrievably destroyed, are you going to be sanctioned? Unless litigation was imminent or reasonably foreseeable you are off the hook. Luckily the defendant in Viramontes v. U.S. Bancorp had no obligation to preserve.    

Authored By: Michael Chew

Employee/Employer Implicated: Counsel for Megaupload

e-Lesson Learned: This case poses a novel legal issue resulting from a conflict in DMCA provisions and Megaupload’s litigation hold obligation.

Tweet This: Megaupload’s Legal Quandary

Almost a year after prolific founder of Megaupload, Kim Dotcom, was arrested and the site’s domain seized, recently disclosed court documents have illuminated the underlying legal complexity of the copyright infringement case.

Authored By: Kathy Trawinski

Citation: United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010)

Employee/Employer Implicated: Government Official, Document Custodian, In-House Counsel, Outside Counsel, Owner & Executive, Upper Management

e-Lesson Learned: A governmental party conducting a criminal investigation must issue a litigation hold at the onset of the investigation in order to instruct its personnel to preserve electronic data, like text messages and emails. Such a government party will not be excused from failing to issue a litigation hold to its agents or officers. The onset of an investigation specifically aimed at prosecution constitutes reasonable anticipation of litigation.

Tweet This: Court orders sanctions against US gov’t for failing to preserve text messages from FBI investigation.

In United States v. Suarez, the United States District Court for the District of New Jersey held that the government violated its duty to preserve relevant data during an ongoing investigation aimed at prosecution of certain individuals.

Authored By: Suzanne Janusz

Citation: Arteria Property Pty Ltd. v. Universal Funding V.T.O., Inc., No. 05-4896 (PGS), 2008 WL 4513696, (D.N.J. Oct. 1, 2008).

Employee/Employer Implicated: Owner/Executive, Outside Counsel

e-Lesson Learned: Website content can be discoverable like other types of electronic files. A court may order an adverse inference instruction when a party fails to produce and denies the existence of documents that it once disclosed to have possessed.

Tweet This: Past Website Content Is Discoverable and Failure to Produce Can Lead to Sanctions

Anything you post on your website can be used against you in later litigation.  Deleting content is not a solution.  Like other electronic files, snapshots or copies of a website as it existed on a certain date are discoverable in litigation.  And for all types of documents, trying to cover tracks by denying their existence after previously disclosing possession of them gives a judge good reason for ordering spoliation sanctions like an adverse inference instruction.

Authored By: Lauren Winchester

Citation: Paris Business Products, Inc. v. Genisis Technologies, LLC, 2007 WL 3125184 (D.N.J. 2007).

Employee/Employer Implicated: Owner/Executive

e-Lesson Learned: Even in an unopposed motion for spoliation sanctions, a NJ district court judge may impose the lesser sanction of a spoliation inference without more direct evidence of defendants’ fault.

Tweet This: NJ District Court Imposes Spoliation Inference in Fraud and Breach of Contract Case.

A N.J. District Court Judge ordered that a spoliation inference being given in response to a motion by plaintiff that the individual defendants were erasing information from the company’s computers.

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: LeagleEagle

Citation: O’Hara v. Royal Coachman Leasing, 2008 WL 1999820 (N.J.Super. App. Div. 2008)

Employee/Employer Implicated: Businesses

e-Lesson Learned: Electronic Discovery continues to expand in scope as more and more devices capable of storing information are invented.

Tweet This: Watch out! Your car might be an electronic device capable of storing information subject to rules of discovery

Technology continues to pervade more and more parts of our lives and now even cars and other automobiles may be implicated in electronic discovery disputes due to advanced digital recording devices and video files.  After a serious car accident, plaintiffs wanted an order for injunction with restraints to preserve material evidence from the crash.  Plaintiffs requested that all evidence be preserved pending the commencement of a personal injury action.