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: Catherine Kiernan

Citation: Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012)

Employee/Employer Implicated: Company executives, in-house counsel, independent agents, document custodians

e-Lesson Learned: The definition of “possession, custody, or control” under FRCP 34(a) will be construed broadly and a party is not required to have physical possession of the documents to be in control of them. Therefore, companies that use independent agencies should be conscious of the requirements and provisions they place in agency contracts because they can be inferred to give rise to discovery obligations.

Tweet This: Court's broad definition of "control" requires that litigation hold include independent agents

For discovery purposes, “control” over documents does not necessarily require actual physical possession.  In fact, certain agency contracts can designate that a company has “control” over documents held by its independent agents.  In Haskins v. First American Title Insurance Company, the United States District Court for the District of New Jersey held that First American Title Insurance (defendant) had to assert a litigation hold on its present and former independent title agents.

Authored By: Suzanne Janusz

Citation: Ngai v. Old Navy, No. 07-5653 (KSH)(PS), 2009 WL 2391282, (D.N.J. July 31, 2009).

Employee/Employer Implicated: Outside Counsel, Deponent Liability Claims Manager

e-Lesson Learned: An attorney’s communications with a client via text message during a deposition are not privileged according to Federal Rule of Civil Procedure 30 as an attempt to interfere with the fact finding of the proceeding.

Tweet This: Under Rule 30, Secret Text Messages to Client during Deposition Are Not Privileged

As text messages have become an increasingly common way for people to casually communicate, they are also being used as a method for attorneys to communicate legal advice to their clients.  However, the line must be drawn when attorneys try to use text messaging to communicate to their clients in secret during a court proceeding or deposition.

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.

Tweet This: EXCLUSIVE: eLessons Learned’s Exclusive Interview with the Honorable Ronald J. Hedges

Interviewed by Catherine Kiernan, Co-Editor in Chief, eLLblog.com Thank you, Judge Hedges, for taking the time to provide eLLblog’s readers with some of your valuable insights about electronic discovery.

Authored By: Erin Hendrix

Citation: Trs. of the Local 464A UFCW Pension Fund v. Wachovia Bank, N.A., 2011 U.S. Dist. LEXIS 15176 (D.N.J. Feb. 15, 2011).

Employee/Employer Implicated: Counsel

e-Lesson Learned: Rule 16 is the appropriate standard for dealing with amending pleadings once a scheduling order has been entered. Additionally, if a plaintiff has in his possession the information which forms the basis of his amended complaint before the appropriate deadline arises, he cannot show good cause for a late request to amend.

Tweet This: Stale order? The deadline for amending pleadings still applies.

Trs. of the Local 464A UFCW Pension Fund  was an ERISA action brought by union pension funds against a number of investment managers.  The parties submitted a joint discovery plain with a scheduling order and a deadline for amending pleadings.  The judge accepted this deadline, and, at first, all was well.  However, nearly eight months later, the plaintiffs asked to file an amended complaint.

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: Kathy Trawinski

Citation: State v. Smith, 920 N.E.2d 949 (Ohio 2009); United States v. Vosburgh, 602 F.3d 512 (3d Cir. 2010).

Employee/Employer Implicated: Police Officers

e-Lesson Learned: Criminal suspects would be wise not to keep evidence of their crimes on their electronic devices, such as cell phones, computers, or external hard drives, as this evidence is likely subject to search by police officers and will likely be admissible at trial.

Tweet This: Courts are split on whether police can search the contents of criminal suspects’ electronic devices

In two recent cases, the Supreme Court of Ohio and the Third Circuit Court of Appeals took different approaches to whether police may search the contents of electronic devices belonging to criminal suspects, such as cell phones and external hard drives.

Authored By: Kathy Trawinski

Citation: DeSantis v. Biehler, Chancery Div. NJ—Ocean Cy. (Grasso, P.J.Ch.) (Jan 30, 2007).

Employee/Employer Implicated: Document Custodian, Employee

e-Lesson Learned: The mere fact that electronic information or equipment goes missing, without more, is not enough to support a finding of spoliation of evidence. A party seeking to support such a claim must show that the information was deliberately withheld or destroyed by the opposing party to prevent acces to the information contained within.

Tweet This: Servers and Hard Drives Disappear, But Court Holds No Spoliation

Although two hard drives, a server hard drive, and server back-up tapes had had gone missing during litigation, the court in DeSantis v. Biehler found that the mere fact that this electronic information had disappeared was insufficient to support a finding of spoliation of evidence.