Spoliation

Prophylactics Do Not Protect Pharmaceutical Companies From Data and Document Discovery Laws!

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

What Would Happen To a Party that Fails To Take Necessary Measures To Preserve Relevant Video Footage? Sanctions, of Course!

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.

What Happens When Video Evidence Is Changed, But Not Deleted?

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.

What Kind of Paper Trail Is Inside Your Computer? Deleting It Is Not As Simple As Pressing Delete

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.

Excessive Force, Missing Video Evidence: Were the Cops Trying to Hide Something?

The Philadelphia Police Commissioner and two police officers were accused of spoliation of evidence in an excessive force case. “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence.” Kinsler v. City of Philadelphia, No. CIV.A. 13-6412, 2014 WL 3964925, at *1 (E.D. Pa. Aug. 11, 2014) (internal citations omitted). In this case, there was an incident that led Jeffrey Kinsler to file a lawsuit against the City of Philadelphia for use of excessive force. Subsequently, a witness submitted a 15-to-30-second-long video to the police department of the events that occurred prior to the arrival of the police officers on scene that day. The police department lost the video. Kinsler argues spoliation and asks for a specific jury instruction stating such, as well as sanctions. The court found however, that there was no spoliation. It determined that the video was not relevant to the case because it only showed events that occurred before the officers arrived on scene. Further, a video was in existence that showed the incident at the time the officers were involved. Also, Kinsler never claimed that the accused officers were ever in possession of the lost video. Therefore, there was no spoliation and plaintiff’s motion for sanctions was denied. Moral of the story: If evidence is at all potentially relevant in pending or foreseeable litigation, preserve it, or risk sanctions. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick in 2012 with a B.A. in Philosophy and Political Science.   Want to read more articles like this?  Sign up for our post notification newsletter, here.

Hiding Bank Account Records Can Be Criminal—Not Just For the Mob!

During the course of discovery, plaintiff Luellen requested that defendant Hodge  produce bank account records.  Hodge failed to produce the bank account records, claiming that the bank, Capital One (and Charter One), had destroyed these records already. Luellen argues that Hodge was aware that the records were being sought for discovery and deliberately allowed the records to be destroyed. Luellen argues that Hodge had two different ways of being aware that the records were relevant to litigation and thus had a duty to preserve the records. First, Hodge was served with Luellen’s interrogatories, requesting information relating to bank accounts in Hodge’s name. Second, Hodge filed a motion for a protective order requesting that the Court quash a subpoena directed to Charter One. The fact that Hodge sought a protective order regarding the bank indicates knowledge that the bank records were sought for discovery. In addition, Luellen claims that in filings dated February 27, 2012, Hodge made statements indicating his awareness of Luellen's pursuit of information regarding Hodge's personal accounts. The argument for spoliation of the bank records is based on the reasonable assumption that if Hodge had directed Charter One to preserve his records when he was served with the first set of interrogatories, then the relevant records would not have been destroyed in accordance with the bank's record retention policy. In a spoliation motion, the party must show that:   (1) the party charged with destroying the evidence had an obligation to preserve it; (2) the records were destroyed with a “culpable state of mind”; and, (3) the destroyed evidence was relevant to the party's claim or defense. In reference to the first element, the court found that “a common sense understanding of the relationship between an account holder and a financial institution leads to the conclusion that Hodge had sufficient control over the documents to be able to direct their preservation.” Hodge should have directed the bank to preserve the records. In reference to the second factor, that the records were destroyed with a culpable state of mind, the court finds that Hodge’s failure to prevent the bank from destroying the records was negligent but not bad faith. The court finally holds that severe sanctions are not warranted in this case because Luellen has not shown that Hodge's failure to preserve the Charter One account records were done in bad faith or that Luellen had been severely disadvantaged by the destruction of the records. Hodge was directed to reimburse Luellen's costs and expenses in the amount of $18.00. The takeaway message here is that while you are in control of bank records, if you can show that you did not act in bad faith when you failed to prevent the banks from destroying the records, you could avoid a spoliation charge. But beware, it is better to anticipate this and prevent it by telling your bank to keep all your records! 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.

To Preserve or Not to Preserve? THAT Is the Question

This dispute stems from Plaintiff Linda Riley’s slip and fall at a Marriott hotel in Hawaii (her husband, James, is another named plaintiff).  As a result of this fall, in simple terms, Riley broke her right leg and sustained permanent nerve damage including sensory motor loss and weakness in her right foot.  Riley contends Marriott was negligent for failing to remove accumulated water (it had been raining that day), provide a non-slip surface, or provide warning signs. The entire accident was recorded on Marriott’s security cameras, and according to the loss prevention manager, the footage is maintained for 30 days.  However, during discovery, instead of being provided with several hours of footage, Riley was only provided with about 7 minutes; the rest was destroyed.  The footage released began about one minute before Riley’s accident, and ended before Riley was even lifted off of the ground! Plaintiff rightfully believed she was prejudiced because:  (1) she is unable to determine how much water was removed from the location and how long it took hotel staff to remove it, and (2) that the loss prevention manager’s testimony regarding the footage cannot be meaningfully challenged because the footage was gone.  This recording was apparently turned over to the Marriott’s liability insurance carrier, but neither Marriott’s investigation into its destruction (if one occurred) nor the results of any such investigation were ever disclosed.  Even maintenance logs—that might have also denoted any water that was removed from the floor or the placement of any signs—were also allegedly destroyed. From this, the court “easily” found Marriott had a duty to preserve both the sweep logs and the video footage from the day of the accident.  Further, the court recognized Marriott’s failure to offer any justification for its failure to preserve the evidence.  For these actions, the court found “at a minimum, gross negligence.”  The question then turned to imposing sanctions. Fortunately for Marriott, their answer was not stricken.  Nonetheless, their failure to preserve evidence still resulted in an adverse inference instruction regarding the video footage, or lack thereof.  This means the absence of a recording can, at trial, corroborate Plaintiffs’ statements that there were no warning signs at the time of the accident and that water had also accumulated on the floor.  Of note here, the jury would not be required to make such an inference.  However, Marriott might not be eager to take that chance.          Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Happens When the Smoking Gun is Thrown in the Recycling Bin?

In January 2014, the Hon. Lawrence E. Kahn in the U.S. District Court for the Northern District of New York granted plaintiff Dataflow, Inc.’s motion for sanctions in a case regarding deleted email correspondence.  Sanctions took the form of the often-case-ending adverse inference, with the judge reserving on the specific language of the adverse inference jury instruction until trial.  Defendant Peerless Insurance Co. might not wait that long, as even the neophyte lawyer can tell when blood is in the water. Dataflow’s claim arose out of a discovery request for production of documents that “targeted, inter alia internal communications and investigations regarding Plaintiffs’ claim.” Dataflow, Inc., v. Peerless Ins. Co., No. 3:11-cv-1127 (LEK/DEP), 2014 WL 148685, *2 (N.D.N.Y. Jan. 13, 2014).   When the defendant failed to produce any internal communications responsive to the document request, the plaintiffs tried again.  After the plaintiffs submitted an even narrower request for production, the defendants still didn’t produce anything responsive. Perhaps smelling something fishy, Dataflow started taking depositions and asking questions about the internal communications at Peerless.  The plaintiffs quickly learned that email was routinely used to communicate about claims.  The emails that Dataflow already asked for.  The emails that Dataflow was told didn’t exist.  The plot thickens. Hon. David E. Peebles, the Magistrate Judge handling discovery in this matter filed a Report and Recommendation urging sanctions be granted and fees shifted.  The District Court, reviewing Judge Peebles’s ruling de novo determined that the Magistrate got it right—and that sanctions are appropriate. The court analyzed the facts of the case under the spoliation framework set forth in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002): On a motion for sanctions due to spoliation, the moving party must show that: (1) the party having control of the evidence had an obligation to preserve it at the time it was destroyed; (2) that party had a culpable state of mind; and (3) the destroyed evidence was of a nature that a reasonable trier of fact could find that it would support the moving party’s claim or defense. Dataflow, at *2 (citing Residential Funding Corp, at 107). Here, the duty to preserve for an insurance party was triggered when a claim was submitted.  As such, any internal communication regarding that claim is obviously supposed to be preserved.  The culpable state of mind can be inferred by the gross negligence displayed by email deletion resulting from a “system change.”  A “system change” that also conveniently “changed” the methods of preservation of documents related to paid and unpaid claims.  Finally, since the plaintiff was able to prove that the contents of the internal email conversations likely would have supported the plaintiffs’ theory of the case, sanctions in the form of an adverse inference just make sense. Perhaps it’s time for Peerless to have a “system change” with regards to their general counsel. 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.

Recycling—Helps the Earth, Saves Lives, and Destroys Electronic Evidence

“Recycle,” “conserve,” “waste,” and “pollution” are terms that were implanted into the minds of each of us at a young age and are now they are being instilled into companies worldwide as a measure to reduce operational costs. Companies such as JPC Equestrian, Inc. have begun recycling and reusing “cleaned” electronic devices from former employees, which would normally not be an issue if companies had a company-wide server or cloud-based software that held all of the information stored within the device. However, since JPC Equestrian, Inc. does not have a company-wide server, once an employee leaves, the company has a procedure in place to “scub” the computer and reassign it to another without care for the electronic information within the device. In Kearney v. JPC Equestrian, Inc., Mark Kearney, a former employee, sued JPC Equestrian, Inc. (“JPC”) for the failure to produce emails relevant to the claim he is asserting. Kearney commenced this lawsuit against JPC when they wrongfully terminated his employment, and breached his sales agreements by either failing to pay him sales commissions or by paying reduced commissions that did not satisfy contractual obligations. Kearney through the discovery process received email documentation from numerous employees and executives dating back to 2005. The discovery submission included JPS turning over 250 pages of documents relevant to the parties and situations involved. However, Kearney requested information for "all relevant emails," which in his original discovery requests, were defined as "[a]ll emails that mention, or refer to the Plaintiff, however, marginally, in any way shape or form from 2002 through 2010." Kearney v. JPC Equestrian, Inc., 2014 U.S. Dist. LEXIS 153975, *5 (M.D. Pa. Oct. 30, 2014). Kearney was missing three years of discovery. Kearney only received documentation dating back to 2005 because the information dating back to 2002 did not exist or does not exist anymore and cannot be recovered. JPS claims that the information cannot be recovered because the computers that would have held that data were wiped clean and erased before the device was transitioned to another employee. JPS has found loopholes around document retention and the court agreed. The court held that JPS’ procedure of document retention was acceptable and the court has, “no basis to conclude that the defendants have withheld responsive documents, or that there is any basis to compel a further response regarding potentially relevant email communication.” Id. at *7. Unfortunately, this holding allows companies an avenue to discard potential and relevant information pertaining to potential litigation that otherwise would have been saved if not for the guise of recycling and employee cost saving. This holding should be reversed and JPS should be penalized for its failure to maintain adequate records for an appropriate period of time. The court should not excuse a company, no matter the size or market capitalization, for not maintaining the electronic information of employees who work within the company. Not only is that bad preservation practice, its poor business practice. Recycling and the protection of our planet is important but those ideals should not give rise to loopholes of common electronic document preservation practices, which are becoming as worldwide and important as protecting the planet itself. Timothy received his B.A. from Rutgers University in 2011. He began his post-college life working in Trenton, New Jersey, at a lobbying and non-profit management organization before attending law school in the fall of 2012. He will receive his J.D. from Seton Hall University School of Law in 2015. Timothy has had a diverse set of experiences during his time in law school and has found his calling in Tax Law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Happens When ESI Is Lost?

Willfully destroying evidence? Failing to preserve materially relevant evidence? These are just two of the allegations Lisa Alter has made against the Rocky Point School District. Prior to submitting her complaint, Ms. Alter had accused the school district of similar wrongdoings. Alter worked for the Rocky Point School District holding various positions over the years. While employed as the Coordinator of Central Registration/Administrative Assistant within the Human Resources department, Alter alleges that she was subject to a hostile work environment on the basis of her gender. Further, Alter claims that she was retaliated against for complaining to the School District about it. The opinion here is related to a matter regarding electronic discovery in this case. The plaintiff filed a motion to compel discovery and for sanctions. After taking several depositions, plaintiff claims to have discovered new testimony relevant to her most recent motion to compel discovery. Specifically, the plaintiff alleged that: “(1) Defendants both failed to preserve and willfully destroyed evidence, and (2) Defendants continue to intentionally withhold relevant evidence despite repeated demands for production.” The school district had a system for overwriting backup drives. The plaintiff contended that by not stopping the overwriting of the backup drives that it constituted a breach of the defendant’s preservation obligation. The defendant claimed that all information relevant to this case (i.e., emails stored on the school’s employee email system). The duty to preserve arises when litigation is “reasonably foreseeable.” The party that has control over the evidence has an obligation to preserve it. Once evidence is lost, the court then looks to the obligor’s state of mind to determine culpability. Here, the court determined that the defendants did not intentionally lose the data. The burden then shifted to the plaintiff to prove that the lost data was relevant.[1] In the instant case, the court did not find bad faith; thus, it was up to the plaintiff to then prove the relevance of the lost data. Ultimately, the court granted in part and denied in part the plaintiff’s motion. The court found that the plaintiff did not meet her burden of showing that the lost documents were relevant. However, the actions of the defendants that lead to losing materials placed the plaintiff in a position to have to file this motion. Thus, sanctions were awarded in the amount of $1,500.00. The moral of the story: When litigation is pending, or likely to begin, preserve or pay the price. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick in 2012 with a B.A. in Philosophy and Political Science.   Want to read more articles like this?  Sign up for our post notification newsletter, here. [1] When the breaching party acts in bad faith, relevance is assumed.

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