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In the United States District Court for the District of Kansas, the plaintiff Helget sued the city of Hays, Kansas for the allegedly wrongful termination of her employment on May 15, 2013. Helget claims that she was fired after she submitted an affidavit in a lawsuit brought by a former Hays, Kansas Police Department Officer. In anticipation of her own lawsuit, on June 26, 2012, Helget’s counsel sent defense counsel a letter requesting the preservation of certain information, including “internet usage, including e-mail usage, by each employee in the Hays Police Department.” Helget subsequently filed her complaint once she was terminated, allegedly in retaliation for her participation in the first lawsuit. The city denied Helget’s claims, stating that she was terminated because she “misused city computers” among other reasons. Helget soon filed a motion to compel defendants to “initiate a litigation hold, for preliminary sanctions for spoliation of evidence and for leave to conduct supplementary discovery on spoliation.” She believes that the city failed to put a litigation hold in place and spoliated evidence by destroying a service containing certain internet usage logs and allegedly overwrote or deleted other electronic documents and electronically stored information. Helget also served a subpoena for the deposition of a corporate representative of the defendant city on issues relating to spoliation. The defendant city responded by claiming they were only under a duty to preserve evidence relevant to this litigation, and not to preserve everything as is. The court began by discussing the issue of spoliation and explicitly noted that “[s]uch preservation may not be ‘selective.’” Additionally, “the duty to preserve commences with the filing of a lawsuit, but the duty may arise even before a lawsuit is filed if a party has notice that future litigation is likely.” The court found that defendant city had a duty to preserve “at least a portion of the electronically stored evidence at issue” since the defendant itself put electronically stored information at issue by alleging Helget was fired, in part, for improper personal use of city computers. The court further supported this duty to preserve by citing Helget’s letter which requested preservation and thus put the city on notice of potential litigation. While the court openly acknowledged that the defendant city did not have the obligation to preserve all documents within the scope of Helget’s notice letter, the defendant city did have an obligation to do more than “simply ignore the letter, which was apparently their response.” The court then ordered that the defendant city to put a litigation hold in place immediately. However, the court chiseled away at this obligation by noting that there “is no justification…for the defendant city to have entered into a city-wide litigation hold of such information, as advanced by Plaintiff.” The relevant scope, defined by the court, was computer usage of the plaintiff’s immediate coworkers, the key players, and those who held substantially similar positions for the city. The analysis then shifted toward whether Helget had established that any such electronically stored information evidence was in fact destroyed. The court looked at three categories of information individually. The first was the city’s “Websense serve”/internet usage history. While the court agreed that this server was more a firewall than a data log of employee internet usage, the court did find that “there are potential spoliation issues relating to the internet usage and email usage of the identified ‘key players,’ the plaintiff’s immediate coworkers, and all individuals holding substantially similar position for the defendant city, regardless of department.” the defendant city was instructed to submit to the plaintiff a proposal for “compiling, reconstructing, and/or producing to Plaintiff” such documents of relevant parties. Next, the court examined the spoliation of documents and electronically stored information in regard to the computer Helget used during her employment. Because this computer is relevant to one of the reasons for the plaintiff’s termination, the court finds that Helget is “entitled to a forensic image of the hard drive of the computer she most recently used while employed by the defendant.” The court went so far as to chastise the defendant city by stating that “[t]his computer should have been better protected by a litigation hold” and ordered that the parties shall split the cost of imaging the hard drive. In conclusion, the court finds that “the defendant city had an obligation to preserve this information. Regardless of whether it was destroyed intentionally or negligently, the plaintiff has provided sufficient evidence that the information is no longer readily available for production.” Because the the defendant had a duty to maintain this information, the court ordered the defendant city to bear the cost for a forensic restoration as a sanction for the defendant city’s breach of responsibility. Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts where she earned her B.A. in English and Political Science. She will receive her J.D. from Seton Hall University School of Law in 2015. After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage. Want to read more articles like this? Sign up for our post notification newsletter, here.
The plaintiff and the defendants both sold Belly Bands, the plaintiff alleged that both Belly Bands were maternity band used to hold up pants. The plaintiff previously filed cases against the defendants for trademark infringement, patent infringement and unfair competition in 2006 and 2008, but those cases were later resolved by settlement agreements. In 2013, the plaintiff filed the recent action alleging that the defendants breached both settlement agreements by selling and advertising Belly Bands. During discovery, the defendants produced some electronically stored information (ESI). The parties contested the sufficiency of the defendants’ ESI production. On December 20, 2013, the court ordered the the defendant to produce all documents referring to customer comments or complaints regarding the defendants’ Belly Band and disclose its search methods within thirty days. On January 21, 2014, the defendants issued a declaration stating that they were in Europe when the court issued this order, and could not immediately comply. They also stated that they would need a computer expert to help them retrieve deleted customer e-mails. On January 3, 2014, the defendants retained a computer expert. On February 4, 2014, the defendant told the plaintiff that they found additional ESI, but did not produce the ESI at that time. The plaintiff filed a motion on February 10, 2014, for sanctions against the defendants for failure to comply with the court order within the thirty day timeframe, seeking: attorneys fees and costs associated with the defendants failure to comply; an order that the defendants disclose all hard drives and provide the plaintiff with access to all email accounts; and an order precluding the defendants “from opposing the plaintiff’s claim that the defendants’ Belly Bands were used to hold up [pants,] from opposing the plaintiff’s damage calculations, and from introducing any opposing evidence wit respect to the damages calculation.” At the time the motion was filed, the defendants still had not produced any additional ESI. Within two weeks after the motion was filed, the defendants produced over 1,000 new electronic documents. The court began its analysis by noting that courts may sanction a party for discovery abuses pursuant to the Federal Rules of Civil Procedure and the court’s inherent powers. Rule 37(b)(2)(C) states a court must order a party who failed to comply with a discovery order to pay the opposing party’s reasonable expenses associated with failure to comply, including attorney’s fees, “unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Sanctions are permissible regardless of the reason for the party’s noncompliance. Moreover, willfulness, fault, or bad faith are not required to impose Rule 37 sanctions, unless the sanction is dismissal. “However, in order for the sanction to comport with due process, the sanction imposed under Rule 37 must be specifically related to the particular claim which was at issue in the order to provide discovery.” Rule 37 sanctions should only be imposed when the party’s failure to comply prejudiced the nonoffending party. Furthermore, the court may impose three types of sanctions pursuant to its inherent powers specifically when there has been spoliation of evidence, including: “1) the court may instruct the jury that it may infer that evidence made unavailable by a party was unfavorable to that party; 2) a court can exclude witness testimony based on the spoliated evidence; and 3) the court can dismiss the claim of the party responsible for the spoliation.” “In determining what sanctions are appropriate in cases of spoliation, courts consider: 1) the degree of fault of the party who altered or destroyed the evidence; 2) the degree of prejudice suffered by the opposing party; and 3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.” The chosen sanction should be “determined on a case-by-case- basis, and . . .commensurate to the spoliating party’s motive or degree of fault in destroying the evidence. First, the court held that the plaintiff was entitled to an award of monetary sanctions under Rule 37. the defendants failed to substantially justify why they couldn’t produce all responsive documents within the court ordered thirty day timeframe. The fact that the defendants were in Europe when the court issued the Order did constitute substantial justification to excuse their noncompliance. the defendant did not alert the court of their travel plans, request an extension, instruct their office manager to comply with the Order, or offer a reason as to why they did not immediately retain a computer expert to assist them in complying with the Order. Further, even once additional ESI was discovered, the defendants failed to produce said ESI for almost a month. Thus, the defendants’ actions prejudiced the plaintiff by forcing the plaintiffs to subpoena third parties for responsive documents, by preventing the completion of necessary depositions, and by having to file the instant motion. Moreover, the court held that the defendant must disclose its hard drives and provide the plaintiff with access to all its email accounts, subject to the defendants’ privileges or privacy interests. The court found that there was real danger that evidence on the the defendants’ hard drive had been destroyed. Further, the defendants made an array of false statements, such as claiming they produced all responsive documents when they in fact had not, and claiming that no documents had been deleted during the time of litigation when overwhelming evidence indicated otherwise. The court found that the plaintiff needed access to the defendants hard drive to prevent any more documents from being destroyed and ensure all responsive documents were produced. Additionally, based upon the same reasoning, the court granted the plaintiff access to all of the defendants’ email accounts, including Amazon, Facebook, Twitter and eBay accounts. However, the court held that the plaintiff failed to prove that the court should prohibit the defendants “from opposing the plaintiff’s claim that the defendants’ Belly Bands were used to hold up [pants,] from opposing the plaintiff’s damage calculations, and from introducing any opposing evidence wit respect to the damages calculation.” The court stated “preclusion remedies are a harsh remedy that should be imposed only in extreme circumstances.” Here, given that the plaintiff obtained documents from third parties and that the plaintiff may recover additional responsive ESI from the defendants’ harddrives and email accounts, the plaintiff cannot—at this time—demonstrate that the defendants’ conduct “impaired the plaintiff’s ability to go to trial or threatened to interfere with the rightful decision of the case.” However, the court denied the plaintiff’s request for preclusion sanctions without prejudice, thereby allowing the plaintiff to request preclusion sanctions should the plaintiff’s search of the defendants’ harddrives and email accounts reveal that the defendants knowingly destroyed evidence and that destruction threatened the plaintiff’s ability to secure a just outcome. Thus, when a court orders ESI production, parties would be wise to immediately comply with the order, or immediately inform the court of substantial reasons as to why compliance will be delayed. Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology. Want to read more articles like this? Sign up for our post notification newsletter, here.
It is never a good idea to raise the suspicions of the court. If a party is going to try to cover its tracks, it has to do so subtly and discretely. It certainly has to do a better job than Dr. O did in the above case. She revealed too much information about herself in the early stages of the case, and it came back to hurt her when it was time to produce discovery. MetLife has brought suit against Dr. O, after the doctor tried to make an insurance claim based on an alleged disability. First of all, Dr. O delayed her responses to initial discovery requests, which is just never a good idea! But not only that, it was subsequently discovered that she had email accounts containing relevant documents that she had not even previously disclosed! Needless to say, Dr. O has already lost all benefit of the doubt in this case. Dr. O was ordered to turn over the computers she used during the relevant period so that MetLife could perform a key word search. Instead of turning over all computers that she used, she turned over only the two computers that she owned. She claimed that she did not have access to all the computers she used anymore, because some were in Internet cafes she used while traveling. OK, fine, but even still, the computers she did turn over, the two computers she owned and presumably used most often, reflected very little activity! Her hard drives showed no evidence of her sending or receiving any emails during a five-year period. In addition, the hard drives reflected a minimal amount of Web browsing. Well that certainly piques the Court’s interest, especially in light of Dr. O’s earlier testimony in which she admitted to searching the Internet on a daily basis! So she searches the Web every single day, and yet there is no record of it on either of her personal computers? Suspicions have been officially raised! But it does not end there. Dr. O specifically testified at her deposition that she used her personal computer (one of the two she handed over) to type up a twenty two-page letter complaining about MetLife. Well, lo and behold, there is no record of this letter reflected in the personal documents on the computers she turned over. So now Dr. O has been caught in a direct lie! But wait, there’s more! Dr. O testified that she engaged in online banking…but the computers show no record of that, either. She also admitted to doing a lot of online shopping as a symptom of her depression and PTSD. And yet, there is nothing on her computers that is consistent with even a single purchase! Dr. O was not subtle and discrete in covering her tracks, and the court saw right through it. It explained that in light of earlier testimony that the doctor is an avid computer user, the lack of use on the computers she turned over demonstrates that she did not provide all of her principal computers. The court found that Dr. O willfully failed to comply with the court’s orders compelling production, and that this refusal was done in bad faith, prejudicing MetLife’s ability to present its case. Therefore, due to the extent and continued nature of non-compliance on the part of Dr. O, the court imposed an adverse inference instruction against the doctor. Again, this just goes to show that a party has to be more careful than Dr. O was in this case. It cannot claim to use computers all day, every day, and then respond to an order of production of these computers by turning over computers that reflect very little, if any, use. Dr. O was too obvious about what she was doing, and the court sanctioned her for it. Do not be like Dr. O! Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of criminal law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office. Want to read more articles like this? Sign up for our post notification newsletter, here.
Communication is key to any joint status report! Parties should not risk annoying the court by refusing to withdraw a motion when both sides are essentially in agreement. The court will find a protective order unnecessary when the defendants completely understand their preservation duties, acknowledge their duties, and have made substantial efforts to preserve discoverable evidence. Under such circumstances, the plaintiff or moving party will both lose the motion and risk wasting the court’s valued time. In McDaniel v. Loyola University Medical Center, McDaniel, the plaintiff, filed a motion seeking a document preservation order after learning that the Loyola University Medical Center, the defendant, planned to change its e-mail system provider. The defendant was transitioning from GroupWise to Microsoft Office, and the plaintiff feared that relevant e-mails would be erased or lost. In response, the court directed the parties to confer in an effort to resolve the preservation issue in a mutually agreeable way. In the submitted joint status report, the defendant demonstrated its belief that it had adequately assured the plaintiff of his spoliation concerns; however the plaintiff was still unwilling to withdraw the motion. As a starting proposition, a party has a duty to preserve evidence if it reasonably knew or could reasonably foresee was material to a potential legal action. Almost a year before the plaintiff filed his initial complaint in this case, the defendant issued litigation holds and constant reminders to 71 employees who may have information relevant to the litigation. Furthermore, the defendant took similar precautions with the additional 20 custodians identified by the plaintiff. Despite the defendant continually recognizing that it was under an obligation to preserve evidence, the plaintiff needlessly insisted that a preservation order was a necessary additional precaution. The court disagreed with the plaintiff and held that a preservation order was unnecessary. When deciding whether to enter the preservation order, the court considered (1) whether the plaintiff demonstrated that the defendant would destroy evidence, (2) whether the plaintiff would suffer irreparable harm without a preservation order, and (3) the burden that likely would result from granting the protective order. Here, the defendant was fully apprised of the scope and gravity of its preservation duties, and the plaintiff failed to demonstrate that the defendant would destroy evidence without a preservation order. The court found that a protective order would be superfluous and needlessly burdensome in this case. Moreover, the court noted in its decision that the parties appeared to be talking past each other and, in actuality, were in complete agreement regarding the defendant’s preservation duties. Lawyers must avoid submitting superfluous and needlessly burdensome motions to the court. Do not waste the court’s valuable time with unnecessary motions on issues that have already been mutually agreed on by both parties. The last thing any lawyer should want to do is to get on a judge’s bad side during the discovery stage of the litigation. Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University. He will receive his J.D. from Seton Hall University School of Law in 2015. After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey. Want to read more articles like this? Sign up for our post notification newsletter, here.
In this case, the plaintiff Nicole Baker sued Bayer Healthcare Pharmaceutical Inc., complaining that the Bayer product Mirena was not adequately accompanied by warnings of its side effects. Baker asked Bayer to produce databases that contains sales calls made by the marketing and sales department to physician’s offices. The sales calls notes also contained conversations between sales representatives and healthcare providers. Bayer argued that only the sales calls notes concerning Baker’s treating physician are relevant. Bayer also argued that producing all the sales calls notes are unduly burdensome and excessive in light of the needs of the case. Ultimately, the court found in favor of the plaintiff, and finds that the databases containing all sales calls must be produced due to their relevance to the current case. Federal Rule of Civil Procedure 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” The information sought “need not be admissible at the trial” so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” The crux of the plaintiff’s argument is that all the sales call notes, not just limited to those related to her physician, are relevant to her case because they would ascertain whether the pharmaceutical company is overpromoting the product Mirena. Overproduction would mean that there could be dilution or nullification of any warnings, thereby rendering the warnings inadequate. The plaintiff argued that the volume and substance of the sales calls notes establish whether there was a vigorous, aggressive sales campaign to the medical profession, leading to failure to heed written warnings. While this argument appears to be attenuated, it does fall under the standard of being reasonably calculated to lead to the discovery of admissible evidence. The court thought although it was a burden to the defendant, all of the sales calls notes are relevant to establishing if Bayer’s Mirena campaign was so pervasive that any doctor, including the plaintiff’s, would fail to pay attention to warnings about the product’s side effects. Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of patent law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc. Prior to law school, she graduated cum laude from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this? Sign up for our post notification newsletter, here
This case provides an important lesson for any person involved in a lawsuit involving text messages as evidence. Here, a group of employees was suing their employer for discrimination under Title VII. When the discovery process began, the defendants requested a number of text messages relating to the conduct of the employees during the relevant time period of the discrimination. These text messages were permitted to be discoverable by the defendant and the plaintiff was ordered to turn over the relevant text messages. The plaintiffs’ lawyer then gave the plaintiffs instructions to preserve all data relevant to the case; otherwise they could face sanctions by the court, which could negatively impact their suit. Spoliation is the legal term for deleting or destroying information sought by the opposing party. This is precisely what occurred here. Apparently the plaintiffs felt that if they simply deleted a portion of the requested text messages that the defendant would have no way to access that information and thus the problem would be solved; if there even was a problem to begin with. When the defendant discovered that these texts had not been turned over with the rest of the discovery they inquired about their whereabouts. The plaintiffs responded that the texts had been deleted. Obviously perturbed, the defendant then subpoenaed the mobile carrier, T-Mobile, and recovered the deleted texts. However, now the plaintiffs had a problem; they had deliberately attempted to conceal and destroy relevant information. The defendant then filed a motion to dismiss based on the actions of the plaintiff. The court granted the motion in part but denied the dismissal of all charges. Though, the court did impose sanctions upon the plaintiff, which carried the potential to seriously harm their case even if everything else went well. The simple lesson here is that you should never conceal, delete, or destroy any relevant information sought by the opposing party. Ultimately the content of the text messages remains unimportant in light of the plaintiffs’ spoliation. The plaintiffs should have followed their lawyer’s instruction to preserve the information. Had they turned over the information, their lawyer would have been able to combat the text messages in court in front of the jury. However, due to their actions, they were sanctioned and essentially handcuffed their counselor from undercutting any information contained within the text messages. Spoliation is never the answer even if you are required to turn over information that does not weigh in your favor. These plaintiffs learned the hard way; do not make the same mistake and follow your lawyer’s instructions. A.S. Mitchell received his B.A. in Political Science from the University of Central Florida (2008). He will receive his J.D. from Seton Hall University School of Law in 2015. Want to read more articles like this? Sign up for our post notification newsletter, here.
In this case, the Plaintiff Nicole Baker sues Bayer Healthcare Pharmaceutical Inc., complaining that the Bayer product Mirena was not adequately accompanied by warnings of its side effects. She asks Bayer to produce databases that contains sales calls made by the marketing and sales department to physician’s offices. The sales calls notes also contain conversations between sales representatives and healthcare providers. Bayer argues that only the sales calls notes concerning Baker’s treating physician are relevant. Bayer also argues that producing all the sales calls notes are unduly burdensome and excessive in light of the needs of the case. Ultimately, the court finds in favor of the Plaintiff, and finds that the databases containing all sales calls must be produced due to their relevance to the current case. Federal Rule of Civil Procedure 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” The information sought “need not be admissible at the trial” so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” The crux of the Plaintiff’s argument is that all the sales call notes, not just limited to those related to her physician, are relevant to her case because they would ascertain whether the pharmaceutical company is overpromoting the product Mirena. Overproduction would mean that there could be dilution or nullification of any warnings, thereby rendering the warnings inadequate. The Plaintiff argues that the volume and substance of the sales calls notes can establish whether there was a vigorous, aggressive sales campaign to the medical profession, leading to failure to heed written warnings. While this argument appears to be attenuated, it does fall under the standard of being reasonably calculated to lead to the discovery of admissible evidence. The takeaway message is that the court thought although it was a burden to the Defendant, all of the sales calls notes are relevant to establishing if Bayer’s Mirena campaign was so pervasive that any doctor, including the Plaintiff’s, would fail to pay attention to warnings about the product’s side effects. Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc. Prior to law school, she graduated cum laude from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this? Sign up for our post notification newsletter, here
It cannot be said enough: preservation of vital, relevant evidence should be handled with due care and diligence. This is not an obligation to take lightly or to be messed around with. When a party becomes aware of the relevance of certain evidence, it shall take all reasonable precautions to make sure nothing happens to it! In Clemons v. Correction Corporation of America, Inc., a pregnant prisoner in a private prison was complaining one night of severe pain. She was told by prison officials that she would be fine. Later the next day, Clemons’s symptoms only continued to grow worse, while the other prisoners desperately tried to get prison officials to help her, but to no avail. Finally, after a day of severe pain, bleeding, and vomiting, Clemons was transported to a hospital. While Clemons came out of this incident just fine, the same cannot be said of her baby, who did not survive premature labor. Clemons then brought a suit against the prison officials for failing to act promptly when she complained of severe pain the first time, leading to the death of her child. Being as this took place in a prison, there was surveillance video footage that would have shown the various movements of prison personnel and would have helped to establish a timeline of events. It should be obvious to everyone how relevant this video would be, and yet it was not preserved for trial! Now, prison officials did take steps to attempt to copy the footage before it was automatically overwritten. The assistant warden assigned a part-time maintenance worker the task of copying the video. When he was completed with this task, this maintenance worker reported to the assistant warden that he had successfully made the copies. However, no one checked the copy the maintenance worker had made until the original footage had already been destroyed. And, as luck would have it, the maintenance worker copied footage from the wrong day! Well now it was too late to get the original footage back, and the parties in this case were without the benefit of seeing what actually happened in the prison during the time in question. The judge remarked that sanctions would be warranted in this case if the prison officials who were responsible for spoliation acted with a culpable state of mind. Proof of intent to breach a duty to preserve is not necessary to satisfy this requirement, so while the prison officials did not intentionally destroy the video footage, they are not off the hook. The judge determined that there was an undisputed duty to preserve, Clemons did not delay in requesting that the video be preserved, the assistant warden knew how important the video was, and the prison officials exercised significantly less care than is required when tasked with preserving such important evidence. The judge ultimately imposed the sanction of an adverse inference jury instruction against the prison officials, because they had a duty to preserve the video, the video was clearly relevant to Clemons’s claims, and the failure to preserve the video was done with gross negligence. The prison officials argued that if any sanction must be imposed, it should be a permissive adverse inference jury instruction, rather than a mandatory one. Nevertheless, they lost this argument as well, because when a judge decides whether an adverse inference is permissive or mandatory, he must take account of the party’s degree of fault. Obviously, the prison officials’ degree of fault here was through the roof, so the inference was deemed mandatory. Let this serve as a lesson to all: do not place important legal obligations in the hands of part-time maintenance workers without even checking their work. This whole ordeal could have been avoided had the assistant warden taken a few minutes out of his day to make sure the correct footage was copied. Do not slack on the duty to preserve, or else sanctions will be waiting! Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of criminal law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office. Want to read more articles like this? Sign up for our post notification newsletter, here.
In May 2014, Hon. Janet Bond Arterton, U.S.D.J. for the District of Connecticut ruled that sanctions were not appropriate in a case involving the conversion of a security video’s native format. Plaintiff Robert Crawford brought a motion for spoliation sanctions—including an adverse-inference instruction and monetary sanctions—against the Defendant City of New London for an alleged failure to preserve a hard drive containing video of Crawford’s arrest. Plaintiff, whose underlying claim involves excessive force issues, suggested that the original format of a security video may have been capable of being enhanced, and as such, Defendants had a duty to preserve that original version, and turn it over for discovery. Judge Arterton disagreed. In examining whether sanctions were appropriate, the court first set about defining the parameters of spoliation. The court noted “[s]poliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Crawford v. City of New London, 2014 WL 2168430, *2 (D. Conn. May 23, 2014) (quoting West v. Goodyear Tire & Rubber, Co., 167 F.3d 776, 779 (2d Cir. 1999)). Later, the court analyzed the adverse-inference charge, and articulated “[a] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Id. (quoting Chin v. Port. Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012)). Here, the court noted that Defendants’ duty to preserve stemmed from a hold letter received pursuant to the Freedom of Information Act on June 24—nearly five months after the incident took place, and more than four months after New London’s retention policy allows for transferring of data to portable storage. As such, while the Defendants certainly had a duty to preserve, there was no specific need for multiple copies of duplicative information. New London hadn’t breached the preservation duty. But what about “Significant Alteration?” Spoliation isn’t just about destruction. Plaintiffs argued that in converting the video evidence from the format present on the hard drive to the portable storage versions on DVD, Defendants sacrificed the integrity of metadata, or of the files themselves such that they could no longer be enhanced for use in trial presentation. This novel argument suggested that were enhanced versions of the video available, perhaps the jury could see that Crawford’s arrest on February 4, 2010, was enacted using excessive force. The court was not persuaded by this argument. Testimony from the City of New London’s Chief Information Officer indicated that the conversion to DVD was lossless, in that the new format preserved the video in every material way. Absent proof to the alternative, the moving party was unable to demonstrate “that the destroyed [or significantly altered] evidence was relevant . . . ” under the standards set forth in Federal Rule of Evidence 401. Defendants were prepared for litigation, and they reasonably preserved all necessary data responsive to discovery request. Defendants’ retention policy for the original hard drive housing security footage is acceptable, and preserving the data on portable media after formatting the drive is an added precaution going well-beyond the standard of care. Crawford is fortunate that Judge Arterton didn’t force Plaintiffs to cover the costs of responding to the motion—if this author was on the bench, he might have. Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015. Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan. Want to read more articles like this? Sign up for our post notification newsletter, here.
Have you ever wondered what happens to electronic files when you press the delete button? Or what happens when you put them in the “e-trash?” You may be surprised to find out that getting rid of electronic material is not as easy as it may seem. And in many cases, actually deleting or tampering with electronic files or data can cause a great big legal headache. The case of First Sr. Fin. Group LLC v. Watchdog explores and explains the issues that can arise when a person tries to permanently delete or tamper with electronic material that should have been protected and preserved for trial. Here, Defendant was asked to preserve the computer she used to make allegedly disparaging and defamatory remarks under her pseudonym, “watchdog.” The problem is that the computer was some how wiped clean of all electronic data after she was asked to it turn over to the experts. Now, let’s back track for a moment. Why is it such a big deal that data was deleted? Don’t people delete files all the time? The key to this problem is that electronic files and data can’t just be deleted unless very deliberate actions are taken. When a file is technically “deleted,” it is simply hidden in the background of the computer and marked as, what we will call, disposable data. Then, when the computer runs out of room to store more data, the disposable data is overwritten. Now, this doesn’t mean there is absolutely no way to wipe the data from a computer. As the saying goes, if there is a will, there is a way! (Even is the way is frowned upon and could present major legal repercussions.) In this case, someone used two programs called Erase Pro and CCleaner to effectively wipe MOST of the data from the computer involved in the case. In legal speak, this is called spoliation of evidence, and if proven, it can mean serious repercussions. Proving a person intentionally tampered with or destroyed evidence requires proof that a person: (1) had control over the evidence; (2) the evidence had relevance to the claim; (3) actually suppressed or withheld the evidence; and (4) that person had a duty to preserve the evidence. In this case, the judge held Defendant was liable for the spoliation of the evidence because Defendant met all of the above factors. However, factors 2 and 3 are particularly relevant to eDiscovery. In regards to the second element (whether the computer data was relevant to the claim), the judge turned to the data fragments recovered by the expert. When a computer is wiped clean with Erase Pro and CCleaner, it still leaves behind fragments of data, which are like pieces of a ripped up letter. In this case, the Judge determined that the data fragments provided enough information to show that the computer data was relevant to the case. As such, the second element was satisfied. In regards to element 3 (whether the data was actually suppressed or withheld), the Judge’s main inquiry revolved around whether the use of CCleaner and Erase Pro is considered intentional. As you might imagine, it was pretty obvious that the use of two separate types of software with the distinct purpose to clear the computer of data is an intentional act. As such, the third element was satisfied. The Defendant got lucky with a minor sanction of a fine, paying for the computer expert, and paying the other parties attorney’s fees related to the investigation of the computer. However, this was nothing compared to those available for spoliation charges. In more serious cases, the judge could hold that an adverse inference be drawn from the missing evidence, or the party could pay all fees related to the case. In the most extreme cases, the Judge could choose to dismiss the case or find the case in favor of opposing party. Overall, when it comes to electronic data there is one thing to remember. Electronic data is extremely difficult to get rid of, and actually getting rid of it can mean serious legal consequences. Victoria O’Connor Blazeski (formerly Victoria L. O’Connor) received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015. Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting. Victoria is a former D3 college basketball player, and she has an interest in tax law and civil litigation. After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey. Want to read more articles like this? Sign up for our post notification newsletter, here.