Spoliation

When is Paper Proof Proper Preservation?

In April 2014, the Honorable Dominic J. Squatrito from the District Court for the District of Connecticut handed down a decision that dismissed all but one of plaintiff Ray Tedeschi’s claims against defendant Kason Credit Corporation (“KCC”), a collections agency that wrongfully targeted Tedeschi based on a telephone mix-up.  On Both parties moved for summary judgment on claims of invasion of privacy and intentional infliction of emotional distress.  Tedeschi’s claims were largely unsupportable – not the least of which being his assertion that Kason Credit Corporation should face an evidentiary adverse inference instruction based on spoliation of electronic evidence. In sum and substance, Tedeschi claimed that KCC was harassing Tedeschi with nearly twenty phone calls over the course of a yearlong period, seeking to collect a debt from a consumer who listed Tedeschi’s new home phone number as a means of contact.  Tedeschi continually informed KCC that he was not the debtor, and asked that KCC stop calling.  Tedeschi v. Kason Credit Corp., No. 3:10CV00612 DJS, 2014 WL 1491173 *2-3 (D. Conn. Apr. 15, 2014). KCC, on the other hand, denied the volume of calls asserted by the plaintiff, and instead asserted that only two phone calls took place over that same period of time.  Id.  KCC further alleged that the behavior met the standards of the Fair Debt Collection Practices Act, 15. U.S.C. § 1692, and was not actionable. Recognizing a dispute of fact, the Court left this claim intact.  However, it’s unlikely that Tedeschi’s claim will pass muster with any jury.  Here’s why: When deposing the CEO of KCC, Karl Dudek, plaintiff learned that a “fact sheet” was generated for Tedeschi’s matter that tracked calls from KCC employees to Tedeschi’s phone number.  In response to an inquiry, Dudek indicated that the fact sheet “has probably been printed out 20 times.” Id. at *16.  Tedeschi argued that the print-out produced at the time of the deposition did not satisfy discovery requirements, since the print-out was dated December 2010, and that the original print-out must have been destroyed. KCC was able to demonstrate that the print-out was unchanged in substance or form from the first request date in June 2010 to the produced copy in December 2010.  Relying on Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), the court outlined the criteria for an adverse inference: the moving party must demonstrate that the party having control over the evidence had a duty to preserve it at the time of destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence would support the moving party’s claim or defense.  Judge Squatrito found that KCC did not have a duty to preserve print-outs, since the print-outs “merely duplicate ‘original evidence.’” Id. at *17.  Since Tedeschi was unable to support a claim that the electronic data was destroyed with any culpable state of mind, the claim necessarily fails.  See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“A party . . . must retain all relevant documents[,] but not multiple identical copies[,] in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.”). Plaintiff’s claims against KCC were doomed from the start, and Tedeschi would have been smart to see the writing on the wall – if not the words on the print-outs. 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.

When Harry (Destruction of Evidence) Met Sally (Criminal Law Culpability)

In the Sixth Circuit, a party seeking sanctions for the destruction of evidence must show three things: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a "culpable state of mind"; and (3) 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. You can find countless articles that outline when the obligation to preserve documents occurs. The Federal Rules of Civil Procedure state, that whenever it can be “reasonably anticipated” that an action will be filed, all parties have a duty to preserve potentially relevant evidence. You can also find numerous articles about the third fact, an individual’s claim that the requested destroyed electronic discovery is relevant to their cause of action or defense. However, this article is about the second factor, the evidence was destroyed with a "culpable state of mind.” The Model Penal Code 2.02(2) establishes that there a four culpable states of mind: purposely, knowingly, recklessly, and negligently. At common law there are more than just the four Model Penal Code culpable states (wickedly, purposely, intentionally, willfully, knowingly, recklessly, maliciously, negligently, scienter). A person acts purposely with respect to a material element of an offense if it is his conscious object to engage in conduct of that nature or to cause such a result; and he is aware of the existence of such circumstances or he believes or hopes that they exist.  A person acts knowingly if he is aware that his conduct; and he is aware that it is practically certain that his conduct will cause such a result. A person acts recklessly when they have a conscious disregard of unjustifiable and substantial risk. Finally, a person acts negligently when a person should have known better then to take that substantial risk that the material element exists or will result from his conduct. The disregard of the risk must be a gross deviation from the standard of care that a reasonable person would have followed. The court in Siggers recognized that "failures to produce relevant evidence fall 'along a continuum of fault—ranging from innocence through the degrees of negligence to intentionality . . . .'" And, "'[o]nce the duty to preserve attaches, any destruction of [evidence] is, at a minimum, negligent.'” This case is an example of one area of the law crossing over into another. The Sixth Circuit incorporated aspects of criminal law into the determination of sanctions. However, the transition is appropriate. A person must purposely, knowingly, recklessly, or negligently destroy electronic documents and evidence to be guilty and worthy of sanctions. Here, the court held that sanctions were not appropriate in this situation because “Siggers failed to demonstrate Campbell’s ‘culpable state of mind’ in destroying the evidence and show that responsive documents existed and were among the destroyed. The court reasoned that although Campbell's discovery failures reflect negatively on her in regards to Siggers' motion, they do not, when weighed against the above considerations, merit the imposition of sanctions. Instead of sanctions, the court offered Siggers the opportunity for redress by questioning Campbell at trial about her failure to timely impose a litigation hold and about the other matters related to his assertion that she must have had relevant e-mail communications that no longer exist. If courts are following such a policy it is important that individuals understand the possible (criminal law based) consequences of their actions. This case illustrates that the importance of proper electronic data management and hold policies in order to avoid potential penalties and sanctions. 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.

When Is the Sanction of An Adverse Inference Appropriate?

The sanction of an adverse inference is appropriate, but not mandatory, in cases involving the negligent destruction of evidence.  The court will determine on a case-by-case basis whether sanctions are appropriate where a party negligently destroyed evidence.  However, the court is more likely to impose sanctions when a discovery obligation is breached through bad faith or gross negligence rather than ordinary negligence.  In Schulman v. Saloon Beverage, Inc., Schulman (the “Plaintiff”) sued Saloon Beverage, Inc. (the “Defendant”) under Vermont’s Dram Shop Act for allegedly serving Mark Clarke, a drunken patron, four Sierra Nevada draft beers approximately ten minutes before he collided head on with the Plaintiff’s car.  The Defendant contended that Clarke was not at its saloon on the night of the accident.  The only documentary evidence available to prove Clarke was at the saloon were the records of checks because Clarke allegedly paid in cash.        The Plaintiff filed a Rule 37 motion seeking sanctions for failing to preserve or permitting the destruction of the checks.  The Plaintiff alleged that the Defendant failed to produce all of the check receipts for the night in question.  After the Defendant produced printed copies of all the check receipts, the Plaintiff then alleged that the Defendant destroyed or altered the evidence because the check receipts contradicted other evidence which showed that Clarke was at the saloon.  The Plaintiff wanted to prove that the Defendant altered the receipts by analyzing the electronically stored information (“ESI”) in original format; however, the computers were not preserved when the saloon went out of business.         The issue in this case concerned whether the Plaintiff established its spoliation claim against the Defendant for destroying the ESI.  A prerequisite to a spoliation claim is that the sought-after evidence actually existed and was destroyed.  In order to obtain an adverse inference instruction regarding the loss or destruction of evidence, a party 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. In Schuman, the Plaintiff established that the Defendant negligently destroyed the ESI.  There was no dispute that the check receipts were relevant because they involved the disputed issue of whether Clarke was at the saloon.  The court found that the Defendant either knew or should have known that the ESI would be relevant to litigation because the Defendant was on notice when the Plaintiff made a claim in the Defendant’s bankruptcy proceedings.  Furthermore, the court concluded that the ESI was destroyed through ordinary negligence, a culpable state of mind.  Although the Plaintiff established that the Defendant negligently destroyed the ESI, the court still held that an adverse inference instruction was not appropriate because the Plaintiff’s suggestion of prejudice was based on conjecture.  Instead of imposing the sanction, the court merely held that evidence of the destruction of the ESI may be admissible at trial. The sanction of an adverse inference is not mandatory in cases involving the negligent destruction of evidence.  The court has the discretion to determine whether the sanction is appropriate where a party negligently destroys evidence on a case-by-case approach.  A party seeking an adverse inference instruction should attempt to bolster its claim by establishing that the other party breached a discovery obligation through bad faith or gross negligence.      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.

Did the Budget For Electronic Copies Just Go Down?

When you think about making a copy, you may think of copying and pasting a document into a thumb drive or a folder in your documents.  You might also think about scanning a document and saving that copy as a PDF.  However, the question in many cases has become what is the price of that copy, and is it a cost that can be recovered. In the case of In Re Text Messaging Antitrust Litigation, the court addressed this very vague and unsettled question.  The court did so by accepting the rule previously set forth in Race Tires Am., Inc. v. Hoosier Racing Tire Corp.,[1] which basely states the following: The cost of making an electronic copy may be recovered, but costs that are unnecessary to making the actual copy will not be recovered. In other words, you may not recover for any extra enhancements made to ESI; however, you may recover any costs associated with the basic copy of the information.  Why is this frustrating?  Because technology presents numerous standard features which streamline and lower the cost of discovery that are deemed unnecessary enhancements under this rule. This case presents a perfect example of an enhancement that is deemed unnecessary in regards to making copies of electronic data.  The technology is called optical character recognition (OCR), which allows a computer to recognize text so that it may be copied, pasted, and searched.  The defendants assert that OCR is a necessary part of copying ESI in order to perform basic interactions with an electronic document (i.e., copying and pasting from the ESI copies). Most individuals assume that the ability to copy and paste data from an electronic document is standard; and as such, it logically follows that this would be a necessary part of making an electronic copy.  However, here, the court deemed that OCR is not a necessary part of making copies. Under this framework, even the commonplace technological advancements such as providing the ability to copy and paste from a copied electronic document are not seen as a necessary cost.  Therefore, the decision to utilize such technology is done on producing party’s own dime. In this case, the court cites Race Tires again stating, “gathering, preserving, processing, searching, culling, and extracting ESI simply do not amount to `making copies.'"  They further explained that only scanning and file format conversion could be considered under the small umbrella of “making copies.” Further, anything that can be deemed “processing" is also not seen as part of “making copies”.  The court even expands on this to say that even if the processing was “essential” to making an electronic copy “comprehensive and intelligible” the services of processing the data are not included in making copies, and therefore, will not be recoverable. The Court in this case does not specifically determine the award of costs, but rather directs the parties to resubmit a budget in compliance with these rules.  However, in the often cited Race Tires case, the court basically limited the awardable costs to only the scanning of hard copies, the conversion of files to appropriate formats, and the transfer of VHS tapes to DVDs. 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. [1] 674 F3d 158 (3d Cir. 2012).

Employee Fired By City, Alleges Spoliation of Evidence That Suggests Retaliation

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.

What Sanctions May a Court Impose On a Party That Fails to Comply With a Discovery Order?

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.

What Should a Party Not Do When Compelled to Turn Over Computers after Having Already Admitted How Much Activity Took Place on Those Computers? Turn Over Computers That Show No Record of Activity

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.

When Should A Plaintiff Withdraw Its Motion For A Protective Order?

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.

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

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

Spoliation By Plaintiff? Deleting Text Messages Can Result In Court Sanctions

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.

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