Authored By: Chrissy Caputo

Citation: Kenney, Becker LLP v. Kenney et. al, 34 A.D.3d 315 (N.Y. 1st Dept. 2006)

Employee/Employer Implicated: In-house Counsel, Kenney Becker employee, upper-level management

e-Lesson Learned: Communications via e-mail between attorneys and their client’s employees are not automatically protected.

Tweet This: Think twice before e-mailing what you don’t want disclosed.

The brief order by the First Department Appellate Division doesn’t delve into much background (or really any background at all) as to the facts of the present case, however, it does shed some light on discovery matters. The prior order had directed the plaintiff to turn over a certain e-mail as part of the discovery, and moved the deposition of the defendant to New York instead of Florida.

Authored By: James B. Damiano

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

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

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

Tweet This: Software Glitch Does Not Waive Privilege

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

Authored By: S.A.A.

Citation: Patel v. Havanna Bar, Restaurant, and Catering, 2011 WL 6029983 (E.D.Pa. Dec. 5, 2011)

Employee/Employer Implicated: Counsel, Client, Judge

e-Lesson Learned: The Court has broad discretion in determining the type of sanction that is appropriate in cases of spoliation, including the possibility of an adverse inference that non-production of evidence was due to a fear of harm that the evidence could cause, thus counsel should be especially cautious in preserving materials necessary for litigation.

Tweet This: Failure to Preserve Footage and Non-Disclosure of Facebook Information May Lead to Adverse Inferences for Both Parties

The District Court judge ruled that an adverse inference was warranted for allegations of discovery abuse pertaining to messages sent on Facebook.  In Patel v. Havana Bar, Judge Goldberg ordered both Plaintiff Patel and Defendant Havana Bar to incur sanctions for spoliation for the former’s failure to produce statements given in response to a Facebook message about the Plaintiff’s case and for the latter’s failure to preserve video footage of the incident in question.

Authored By: S.A.A.

Citation: Ford Motor Company v. Edgewood Properties Inc., U.S. District Ct. (Salas, U.S.M.J.)

Employee/Employer Implicated: Owner/Executive; Counsel

e-Lesson Learned: With all the new ways in which electronically stored information can be produced, counsel should be specific in the form in which they want or at least object within a reasonable time when it is produced in a form they don’t approve of.

Tweet This: Be Concrete! Court Requires Specificity for eDiscovery in Ford’s Contaminated Concrete Case

Be careful what you ask for…or don’t ask for! Electronic discovery may be something of a new phenomenon when it comes to the discovery of information in preparation of litigation but one idea has always remained constant: discovery requests should always be specific. That’s what Edgewood learned in Ford Motor Company v. Edgewood Properties Inc., a case that arose from a contract in which Ford agreed to provide concrete to Edgewood in return for Edgewood hauling it off the demolition site where a Ford assembly plant in Edison, New Jersey was being demolished. Besides the discovery process, what wasn’t so “smooth” was the concrete, as it later turned out that the concrete was contaminated, thereby bringing about Ford’s claim against Edgewood under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and the New Jersey Spill Act for “contribution and indemnification for all costs as provided under the contract.”

Authored By: Mark Keddis

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

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

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

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

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

Authored By: Lauren Winchester

Citation: United States v. Briggs, 2011 WL 5881593 (W.D.N.Y. 2011)

Employee/Employer Implicated: Outside Counsel; Criminal Defendant; Government Official

e-Lesson Learned: If you want to receive ESI in a form that you prefer, then your best bet is to work out the details of discovery with your adversary so as to avoid judicial intervention and micro-management eDiscovery because you’ll likely not be satisfied with the court’s decision.

Tweet This: Gov’t Not Required to Produce ESI in Manner Requested by Defs in Cocaine Distribution Case

In his November 23 decision, federal Magistrate Judge Hugh Scott held that the government was not required to produce electronically stored information (“ESI”) in the manner requested by the defendants in a 24-person criminal cocaine distribution conspiracy.  Judge Scott made it clear that in the absence of a clear criminal standard, he would follow analogous civil standards for distribution of ESI.  But see Subsequently adopted standards released recently by criminal rules committee.   Defendant Damian Ard, joined by ten other defendants (including the named defendant, Briggs), moved to amend the criminal ESI Order to clarify the manner in which specific government ESI should be produced.  The original ESI Order required the government to choose between producing ESI in its native format and reproducing it in a searchable format.

Authored By: Mark Keddis

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

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

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

Tweet This: Always Promptly Double-Check the Entirety of Your Work or the Federal Rules of Evidence Will Get You.

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

Authored By: S.A.A.

Citation: 2011 WL 6029983 (E.D.Pa. Dec. 5, 2011)

Employee/Employer Implicated: Counsel; Client; Judge

e-Lesson Learned: Since the Court has broad discretion in determining the type of sanction that is appropriate in cases of spoliation, one of which includes an adverse inference that non-production of evidence was due to a fear of harm that the evidence could cause, counsel should be especially cautious in preserving materials necessary for litigation.

Tweet This: Adverse Inferences for Parties’ Failure to Preserve Footage and Non-Disclosure of Facebook Information

I’m sure Yogesh Patel did not “LOL” when a District Court judge ruled that an adverse inference was warranted for allegations of discovery abuse pertaining to messages sent on Facebook. In Patel v. Havana Bar, Judge Goldberg ordered both Plaintiff Patel and Defendant Havana Bar to incur sanctions for spoliation for the former’s failure to produce statements given in response to a Facebook message about the Plaintiff’s case and for the latter’s failure to preserve video footage of the incident in question. Patel, which, at first glance seems to be a typical personal injury case, turns into an enigmatic situation in which both plaintiff’s and defendant’s counsels appear to be hiding information from each other.

Authored By: Edward J. Piasecki

Citation: Terraphase Engineering, Inc., et al. v. Arcadis, U.S., Inc. U.S. District Court for the Northern District of California

Employee/Employer Implicated: In-House and Outside Counsel

e-Lesson Learned: If counsel inadvertently receives an email containing privileged information, reads it, and fails to notify the sender, counsel may be disqualified.

Tweet This: Finders Keepers? What Not to Do With Inadvertently Received Privileged Information

Ever find something you knew did not belong to you, but kept it anyway? If you have, perhaps you did so under the guidance of the old adage “Finders keepers, losers weepers.” The adage can be applied in a multitude of ways to a variety of things. One of the more humorous situations in which this occurs is via the receipt of an inadvertently sent email. Perhaps a colleague, thinking he was writing to his wife, inadvertently sent you an email about shopping at Bed, Bath, and Beyond. Or perhaps another colleague inadvertently hit reply all to an email belittling his boss. If you have spent anytime in the workplace, scenarios like these are all too familiar. When you receive an email like this, it may be the greatest gift the office humor gods can bestow upon you and it must be opened immediately and maybe even saved to embarrass a colleague at some later date. Finders keepers, losers weepers right? Unfortunately, this is not always so. When legal counsel inadvertently receives an email with privileged information, finders keepers can have dire consequences.

Authored By: Drew Manary

Citation: Radian Asset Assurance, Inc. v. College of Christian Brothers of New Mexico (2010).

Employee/Employer Implicated: Plaintiff (Radian), defendant (College of Christian Brothers of New Mexico) and subsequent owner of defendant’s assets, Laureate Education, Inc.

e-Lesson Learned: If a defendant is compelled to produce unreviewed ESI, defendant shall have to pay for production but plaintiff shall pay for review. Additionally, if privileged information is transferred inadvertently from defendant to plaintiff, the defendant has burden of proving the information was privileged.

Tweet This: Forcing D's to pay for ct-ordered production isn't unreasonable, nor making them est. the inadvertent transf of privl. information

Radian initially filed suit against College of Christian Brothers in September 2009. Two days the filing, defendant (“College”) sold its assets to Laureate Education. As early as March 2010, College subpoenaed Laureate Education for materials obtained in the sale. In August 2010, College received 135 hard drives, 52 backup tapes, and an additional hard drive with information from Laureate Education’s current server. Radian and College had been to court several times over ESI. In September 2010, the Court ordered that College search and produce email from certain tape backups as well as producing 1,219 files Radian had assessed as relevant from Laureate Education’s current hard drive. The dispute in the present matter is whether College should be forced to restore the tape backups and review them at their own expense and whether doing otherwise constitutes unreasonable cost-shifting. Radian makes five arguments in support of this proposition.