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: 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: 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: Chrissy Caputo

Citation: In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va. 2008).

Employee/Employer Implicated: Outside Counsel, Information Technology Provider

e-Lesson Learned: Failing to properly limit a subpoena to relevant, non-privileged e-mails that fit within an exception to the U.S. Privacy Act will be quashed.

Tweet This: You’ve got mail…and AOL won’t give it to others without a fight

Contrary to popular belief, AOL is still an internet service provider and has recently made itself relevant again.  During the Hurricane Katrina litigation in McIntosh v. State Farm Fire & Casualty Co., two non-party witnesses discovered what they believed to be fraud on behalf of State Farm.

Authored By: James B. Damiano

Citation: Datel Holdings Ltd. v. Microsoft Corp., No. C-09-05535, 2011 WL 866993 (N.D. Cal. Mar. 11, 2011).

Employee/Employer Implicated: In-House and Outside Counsel, Contract Lawyers

e-Lesson Learned: Production of privileged emails resulting from a vendor’s software glitch was inadvertent and does not waive privilege.

Tweet This: Software Glitch Does Not Waive Privilege

In Datel Holdings Ltd. v. Microsoft Corp., the court was faced with a Motion by the Plaintiff to Compel the production of several document’s inadvertently produced by the Defendant and admitted into evidence at a deposition, that the Defendant now claims are protected by the attorney-client privilege. In this case, the Defendant produced several abbreviated versions of an email chain that did not contain the initial email message from in-house counsel to a non-lawyer program manager, although the following reply emails were entirely among non-lawyers, and discussed the results of computer testing and did not transmit legal advice.

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: 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.

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: 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: 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 2)

Welcome back for the second of our three-part 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, proper procedures for Rule 16 conferences, and the scope of electronic discovery under Rule 26. Part Two focuses on cost-shifting, subpoenas and implicated third parties, and form of production. Finally, Part Three will focus on privilege and waiver, preservation, spoliation, and sanctions (stay tuned!)