Authored By: Amanda Munsie

Citation: U.S. Bank Nat. Ass’n v. GreenPoint Mortgage Funding, Inc., 94 A.D.3d 58 (N.Y. App. Div. Feb. 28, 2012)

Employee/Employer Implicated: Counsel (in house and outside)

e-Lesson Learned: The producing party bears the initial cost of searching for, retrieving and producing ESI.

Tweet This: According to at least one New York court, litigants must front the costs of finding and producing ESI and hope to recoup it later.

In February 2012, the New York State Supreme Court, Appellate Division, First Department, held that the cost of finding of producing electronically stored information (ESI) is placed initially on the party producing the discovery request.  While this decision is consistent with New York’s longstanding rule that discovery requests are to be paid by the responding party, discovery in the context of ESI brings an added complication.

Authored By: Thomas Moran

Citation: Barr Laboratories, Inc. v. Kos Pharmaceuticals, Inc., 362 F.Supp.2d 421 (S.D.N.Y. 2005).

Employee/Employer Implicated: Senior Management, Outside Counsel

e-Lesson Learned: A company may not be able to protect all trade secrets in a courtroom, at least in terms of a company seeking an injunction and temporary restraining order.

Tweet This: When are Trade Secrets not Trade Secrets? When you try to obtain an injunction and temporary restraining order.

When are trade secrets no longer allowed to be kept secret?  According to the Southern District of New York, when you try to obtain a preliminary injunction and temporary restraining order in federal court you also appear to waive your right to trade secrets.

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: 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: 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: 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!)

Authored By: James B. Damiano

Citation: Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418 (D.N.J. 2009)

Employee/Employer Implicated: In house and outside counsel

e-Lesson Learned: A receiving party is required to review ESI and either accept or object to the proposed mode of production within a reasonable period of time.

Tweet This: "Hauled" to court over ESI

Imagine requesting data in native format and receiving it in Tagged Image File Format? This is what Edgewood received from Ford Motor Company (“Ford”) instead of the metadata they requested.  The discovery request came as a result of a lawsuit between Ford and Edgewood involving the removal and reuse of contaminated recycled concrete aggregate, which Edgewood procured through the demolition of an automobile assembly plant owned by Ford in Edison, NJ. To remove a portion of the concrete, Ford entered into a contract with Edgewood in which Ford agreed to provide concrete to Edgewood free of charge in exchange for its removal from the site.

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 1)

Very recently the second edition of the eDiscovery pocket guide for federal judges was released by the Federal Judicial Center.  The new edition is key to understanding how judges view eDiscovery requests and how attorneys can avoid costly sanctions and unnecessary and damaging production.  The Guide is comprehensive and expands on many of the fundamental issues surrounding electronic discovery that have further developed since the first edition. e-Lessons Learned will be posting a three-part series summarizing the Guide to help highlight the key issues that judges consider when dealing with electronic discovery.  Part One will focus on Rule 16 conferences and the scope of electronic discovery under Rule 26. Part Two will focus on cost-shifting, subpoenas and implicated third parties, and form of production (stay tuned) Finally, Part Three will focus on privilege and waiver, preservation, spoliation, and sanctions (stay tuned)

Authored By: Mark Keddis

Citation: United States v. Sensient Colors, Inc., 80 Fed. R. Evid. Serv. (Callaghan) 887 (D.N.J. 2009).

Employee/Employer Implicated: Attorneys and Paralegals from the United States Department of Justice and the Environmental Protection Agency

e-Lesson Learned: Once a party is made aware of and confirms clear inadvertent production of certain documents, waiver of privilege for other documents subsequently determined to be inadvertent can only be avoided through prompt reassessment of the procedures used and re-examination of all production. This is true even when a sophisticated computer program was used to conduct the privilege review.

Tweet This: When a Clear Mistake Has Been Made, Always Promptly Double-Check the Entirety of Your Work or the Federal Rules of Evidence Will Get You

Technology today often serves as the crutch upon which students and members of the workforce rely to complete and review assignments.  However, such technology does not always efficiently replace good, old-fashioned human effort.  For instance, the spell-checker in Microsoft Word can alert you to a possible mistake but the decision to continue searching for other mistakes must be made by the user.  Indeed, the existence of even one mistake should alert the reader or provider of a document that other mistakes may be present and prompt that person to reevaluate the rest of work.  The 2009 decision United States v. Sensient Colors, Inc. is a critical example of how damaging the failure to promptly and diligently check for additional mistakes can be for privilege invocations during discovery production.