Welcome to the new eLessons Learned

eDiscovery Written by Law Students

eDiscovery Written by Law Students

eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.

Law + Technology + Human Error

Law + Technology + Human Error

Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.

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New to the eDiscovery world?

Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There

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Never Spend Your Money Before You Have It, And Never Allege Discovery Issues Before You Have Them.

Author: Ashley E. MorganCase Citation: Physicians All. Corp. v. WellCare Health Ins. of Ariz., Inc., No. 16-203-SDD-RLB (M.D. La. Feb. 27, 2018) Employee/Personnel/Employer Implicated: Defendant Company and CounseleLesson Learned: The producing party must make a conscientious effort to explain clearly and with evidentiary support why the evidence demanded is or is not proportional to the case.Tweet This: Best Practice Is To Not Waste Months Of The Court’s Time With Baseless Representations That Could Have Been Easily Disproven With Reasonable Diligence The recent e-Discovery amendments to the Federal Rules of Civil Procedure place proportionality front and center. Still, despite the frequency in which “proportionality” is expressed in connection with e-Discovery, its meaning is not always easy to put into words. Thankfully court rules, commentators and case law provide guidance about factors to consider when examining e-Discovery proportionality. At issue in Physicians All. Corp. v. WellCare Health Ins. Of Ariz., Inc., was the proportionality of a request for production. Plaintiff’s Request for Production No.35 sought production of all “documents and/or communications contained on any personal or business systems, electronic databases, serves, or document management systems” used by certain custodians. Defendant objected to the request on the basis that it was overbroad, unduly burdensome, sought irrelevant information, and was not proportional to the needs of the case. Specifically, Defendant represented to the Court that the restoration of certain backup tapes from the years 2003-2004 and 2011 would cost $211,500 and $372,800 respectively. Much of the data on the backup tapes was believed by defendant to be cumulative of prior productions, carried little relevance, and was not reasonably accessible. Plaintiff responded with the filing of the instant Motion to Compel Production. This motion sought the production of all data from the backup tapes for the years 2003-2004 and 2011. As an offer of good faith, Defendant responded that it would retain an outside consultant to work with their Information Technology department on understanding the underlying technical issues. In 2015, Federal Rule of Civil Procedure 26(b)(1) was amended to state expressly that to be discoverable, information must be not only relevant but “proportional” to the needs of the case. Fed. R. Civ. P. 26(b)(1) provides that discovery may be limited if the burden or expense of the proposed discovery outweighs its likely benefits. However, it is not enough to simply claim a burden, but the producing party must make a conscientious effort to explain clearly and with evidentiary support why the evidence demanded is or is not proportional to the case. Upon retaining an outside consultant, Defendant was made aware that the true costs of restoring the 2003-2004 backup tapes would be $7,319.83 to $12,968.83 and that no backup tapes were ever made for the year 2011. Along those same lines, Plaintiff confirmed that only 71% of the data recovered was duplicative of other information produced. Here, production of the requested backup tapes was appropriate as Plaintiff was able to demonstrate that the discovery sought was proportional to the needs of the case. The amount in controversy exceeded $20 million, and Defendant had sole access to the relevant information sought. Given the modified estimates for recovering information, there are adequate resources for Defendant to produce any recoverable documents. Consequently, the Court ultimately found that the likely benefit of the discovery sought outweighed any burden or expenses placed on Defendant. Thankfully, the Court only ordered that the Plaintiff’s Motion to Compel Production be granted and did not impose any sanctions for the countless months and money that had been wasted on Defendant’s unfounded claims of discovery being excessively burdensome. As the saying goes, it’s better to be safe than sorry and in this case, most discovery issues could have been avoided if Defendant had just exercised reasonable diligence at the start of litigation. The fact that Defendant claimed the cost of recovery for the 2011 tapes was nearly half a million dollars only for it to later emerge that the tapes for that year never existed at all demonstrates extreme bad faith. Best practice would be for a litigant to always thoroughly investigate all discovery issues before brushing them off as not being proportional. As a result, had Defendant just done their due diligence from the start, it could have saved hours upon hours of time and money. Ashley is a 2016 magna cum laude graduate of Seton Hall University located in South Orange, New Jersey where she earned her B.A. in Political Science, History, and Philosophy. She will receive her J.D. from Seton Hall University School of Law in 2019. After graduation, Ashley will serve as a clerk to a trial judge in the Superior Court of New Jersey in the Bergen vicinage. Want to read more articles like this?  Sign up for our post notification newsletter, here.

How is it possible to get caught fabricating text messages from my cell phone?

Author: Elliot M. HirschCase Citation: Lee v. Trees, Inc. 2017 WL 5147146 (D. Or. 2017)Employee/Personnel/Employer Implicated: Employee eLesson Learned: Fabricating text messages in your cell phone will likely lead you to lose your case because there are people out there that can catch your wrongdoings.Tweet This: If you’re going to claim sexual harassment make sure you don’t falsify text messages to buttress your claim because, in the end, you will lose big time. Sexual harassment cases always generate nation-wide attention. But they generate even more attention when the “victim” is not really the victim but the perp.  Sarah Lee claims that she engaged in a consensual sexual relationship with a fellow colleague of hers, Paul Sims at the company Trees Inc. After their consensual relationship, Ms. Lee decided she wanted to stop but Sims wasn’t having it. He continued to verbally and sexually harass her at the company along with other employees. Subsequently, Ms. Lee was fired from her job and she filed suit claiming gender discrimination and state law claims. The center of the dispute concerned text messages that were allegedly sent by Sims to Lee during their relationship. Sims ended up hiring a super expert in the field of electronic devices, including phone calls and text messaging and deciphering computer codes, the official title of certified forensic computer examiner. He even worked for the FBI. This expert was able to decipher and see that Ms. Lee fabricated texts and didn’t send them when she said she did.  After going through evidentiary questions concerning when to admit expert testimony the court concluded that the text messages were, in fact, fabricated. The court noted in its discussion about counsel fees and terminal sanctions that Ms. Lee did not produce in discovery the text messages that Sims was requesting. She obstructed discovery by not producing, in electronic format, the text messages. The main point the court focused on in its ruling was the fact that fraud should not be condoned and drastic measures were necessary to prevent future damage such as the one that occurred here. Elliot M. Hirsch is 3rd year law student at Seton Hall University. He was a scholar-athlete at the CUNY Brooklyn College and traveled the world playing tennis before attending law school. Mr. Hirsch also tutored over 2500 students in the TriState New York Area.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

If I sign a non-compete restrictive agreement with my employer and it is tied to any benefits I receive from the company will it be enforceable in court?

Author: Elliot M. HirschCase Citation: IBM v. Naganayagam, 2017 WL 5633165 (S.D.N.Y. 2017) Employee/Personnel/Employer Implicated: Vice President in the global business services division of IBM Australia.eLesson Learned: If you claim that certain ESI information will reveal pertinent information relating to your case, you better be sure the contents of the ESI information will satisfy the court's threshold requirement forcing the discovery of such information.Tweet This: Don’t sign a clear, unambiguous non-compete restrictive covenant that is attached to benefits received while working for a company if you plan to want to keep those benefits and violate those terms. You’re asking for trouble. This case is important to anyone who works for a company and is promised and receives certain benefits from their employer. IBM is one of the biggest corporations in the world. They are a billion-dollar company and one would think that an even a couple hundred thousand wouldn’t be so important to them. But guess again. This case is about a man who worked for IBM and received certain stock options worth around $112,000 and, after he left the company, was sued by IBM for the value of those stock options and IBM wants their money back.  Mr. Naganayagam used to be employed by IBM. His position was as Vice President in the Global Business Services Division of IBM Australia. While working for IBM he was able to receive long term awards and benefits. He received Restricted Stock Units ("RSUs"), which were scheduled to vest on later dates in accordance with his continued employment with IBM. He received these benefits under the terms and conditions of IBM's Long-Term Performance Plan (the "Plan") and Equity Award Agreements dated June 8, 2009, June 8, 2010, June 8, 2011, and June 8, 2012 (collectively the "EAAs"). Under the plans, IBM has the capability to rescind or cancel these awards subject to certain behavior by its employees. In June of 2013, the RSUs awarded to Defendant in June of 2009 2010, 2011, and 2012 vested and were released into Defendant's Morgan Stanley Smith Barney account. (Id.17-20.) As a result, Defendant realized gains totaling $112,000. After getting these rewards, Mr. Naganayagam retired from IBM and joined a different company called Computer Science Corporation. Thereafter, there was serious litigation concerning these matters. IBM was adamant that CSC was a competitor of theirs and that by working for them, their former employee violated the plans that allow IBM to cancel or rescind their awards. And for this, they wanted their money back concerning the RSU's. However, Mr. Naganayagam was arguing that IBM contained emails and a strategy plan that would show that CSC was not a competitor of theirs. IBM was unable to locate its strategy plan or simply said they didn’t even have one. And that it was unnecessary to produce them since that information would be irrelevant since the depositions of the employees of IBM, including Mr. Naganayagam, already settled the matter that CSC was a competitor. Mr. Naganayagam was trying to make a claim for spoliation in relation to ESI, the emails between Lisa Caldwell, an employee of IBM. The court established that the applicable rule to adjudicate this matter was Federal Rule of Civil Procedure 37(e ). The court concluded that Mr. Naganayagam failed to provide the Court with any deposition testimony by Caldwell to the effect that the e-mails contained discussions of whether IBM and CSC are competitors and without such evidence, they could not grant him his motion for spoliation. They denied him the opportunity to seek the ESI information that he was requesting because they deemed it irrelevant to the claim he was making. This is a SUPER important law concerning eDiscovery documents that are not necessarily going to be produced. The rule of law that came out of from this case is that you must prove that the information is relevant to the claim your making. The court next considered the motion for summary judgment that IBM was seeking against Mr. Naganayagam. The main issue at play was whether there was a material dispute concerning the terms of the plan that delineated what actions were permitted by IBM concerning their awards given to employees. The court concluded that, in fact, there were no material disputes concerning the terms of the plan and ruled in favor of IBM. The court ruled that the plan was specific and unambiguous regarding its language for employees working for competition. The court found it undisputed that CSC was a competitor of IBM since even Mr. Naganayagam. testified as such. The court then noted that restrictive non-compete agreements are subject to heightened judicial scrutiny and would only be upheld under certain conditions, such as a voluntary resignation from a company. The facts here were that Mr. Naganayagam did, in fact, voluntarily resign and was offered a similar salary to his new job by IBM. So, the court decided to rule against him. The court then concluded that IBM was entitled to counsel fees since their plan contained clear language concerning this provision.  This case goes to show you how having a good clear and direct language in your companies operating agreements and policies can protect them from potential lawsuits and unjustly enriching their employees. Elliot M. Hirsch is 3rd year law student at Seton Hall University. He was a scholar-athlete at the CUNY Brooklyn College and traveled the world playing tennis before attending law school. Mr. Hirsch also tutored over 2500 students in the TriState New York Area.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Should A Party Do If Her Adversary Has Tampered With Evidence? Calling Out Shady Practices Via A Motion For Sanctions

Author: Maria A. GrajalesCase Citation: GoPro, Inc. v. 360Heros, Inc., No. 16-cv-01944-SI (N.D. Cal. March 30, 2018)Employee/Personnel/Employer Implicated: CEOeLesson Learned: Mr. Kintner, CEO of 360 Heros, Inc. should have refrained from making any alterations to the original conversation between himself and Mr. Jenny and should have preserved the original conversation in its native form to avoid any suspicion of evidence tampering.Tweet This: Shady practices lead to serious sanctions, reminding us that honesty is the best policy. There are few violations that interfere with the courts’ truth-seeking function as much as tampering or forging evidence. The practice of tampering with and forging evidence serve as an impediment to a fair and honest resolution of legal disputes. When a court finds that a party has engaged in this improper conduct, it can impose severe sanctions. Thus, as the old adage goes: “honesty is the best policy.”   Parties to lawsuits oftentimes make mistakes – some graver than others. Arguably two of the gravest mistakes a party can make are forging evidence and failing to preserve evidence in its native form. This is precisely what happened in GoPro, Inc. v. 360Heros, Inc. In GoPro, Inc. v. 360Heros, plaintiff, GoPro, Inc. sued defendant, 360Heros, Inc., namely claiming trademark infringement. In addition to a motion for summary judgment, plaintiff filed a motion in limine and a motion for partial terminating sanctions. Of interest here is the motion for partial terminating sanctions. Plaintiffs claimed that defendants forged evidence regarding the “parties’ dispute over plaintiff’s ABYSS mark.” Specifically, plaintiff claimed that two emails produced by defendant “containing the transcript of two 2014 Skype conversations . . .” had been forged. Mr. Kintner, CEO of 360 Heros, Inc., denied these allegations. When asked to produce the original Skype conversation in its native form, Mr. Kintner maintained that the conversation “is no longer available to him.” In response, plaintiff investigated further and “accessed equipment containing Mr. Jenny’s end of the Skype conversation with Mr. Kintner.” These records did not include references to “abyss.” Plaintiff then hired an expert, BlackStone Discovery, to conduct a forensic analysis and determine whether the Skype conversation contained the two lines referencing “abyss.” Using Access Data FTK, “a forensic imaging tool,” Blackstone Discovery concluded that Mr. Jenny’s “imaged Skype database did not contain the two highlighted lines referencing abyss.” The court determined that defendant “deliberately altered in an effort to strengthen its legal position with respect the ABYSS mark.” While acknowledging that sanctions can be a harsh penalty, the court determined that in this case they were warranted. The court determined that the appropriate sanctions was for the court to provide “an adverse inference instruction at trial . . . and reimbursement to GoPro of the costs incurred in retaining [the expert].”    In GoPro, Inc. v. 360Heros, Inc, Mr. Kintner took one too many steps towards the wrong direction and it cost him big time. His first misstep was in allegedly failing to preserve the Skype conversation in native format. Had Mr. Kinder preserved the document in native format, he could have dispelled any suspicion of impropriety. However, plaintiff’s subsequent investigation suggests not that Mr. Kintner failed to preserve the conversation in its native format, but that he simply found it unfavorable to produce it. This leads us to Mr. Kintner’s second mistake, which was in altering and thereby forging the subject Skype conversation. By adding “ABYSS” to the conversation where they did not exist previously, defendant committed a fraud upon the judicial system and plaintiffs. The rules of evidence require that all documents sought to be introduced into evidence must be a true and correct copy of the original. Therefore, by providing plaintiffs and the court a document that was not a true and correct copy of the original, but rather a forged version, defendant engaged in impermissible conduct. The temptation to cheat or to otherwise seek an improper advantage over one’s adversary may be particularly strong in high-stake cases and cases where the odds seemed stacked against us. However, we must heed not to the voice of temptation, but to the voice of reason. We should get into the practice of preserving important documents in their native format. And, most importantly, we should abstain entirely from altering documents that are to be introduced into evidence. Otherwise, we may face the wrath of the court and the sanctions that flow from it. Maria is a third-year law student at Seton Hall University School of Law and is expected to graduate in January 2020. She earned a B.A. in Political Science from Montclair State University in 2015. Maria is interested in the area of complex litigation. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Cell-Site Location Information: How “Good Faith” Reliance Circumvented Fourth Amendment Protections

Author: JATCase Citation: U.S. v. Pleasant, Criminal Action No. 17-62 (E.D. Pa. Sept. 5, 2018)Employee/Personnel/Employer Implicated: Police, MiscellaneouseLesson Learned: Despite the recent Supreme Court decision in Carpenter, the warrantless seizure of cell-site location information (CSLI) was found to be permissible where law enforcement acts on a good faith basis pursuant to the Stored Communications Act, and the information is relevant and material to an ongoing criminal investigation.Tweet This: Bank robbers thwarted! Reasonable expectation of privacy provides no defense when law enforcement acted upon good faith in accessing cell-site location information. In this digital age, one’s expectation of privacy under the Fourth Amendment is subject to immense scrutiny. Cell-site location information (CSLI), for instance, gives off the user’s location without their consent, tracking their every movement throughout the day. This level of intrusiveness raises “Big Brother-esque” concerns and potential abuses by law enforcement. However, there are situations where accessing CSLI is reasonable, and even permissible, in order to prevent criminal activity. Consider the following case as an example of how electronically stored information, in the form of CSLI, operates in the context of balancing Fourth Amendment protections against warrantless searches and seizures, against the need to give law enforcement proper recourse to prevent criminal activity. In United States v. Pleasant, No. 17-62 (E.D. Pa. 2018), the court allowed the introduction of CSLI as evidence, even though the information was acquired without a warrant. The defendant Pleasant had committed multiple bank robberies, but unbeknownst to him, his cell phone was conveying information to nearby cell towers. Information from the several towers can be used to triangulate the owner’s position. Law enforcement officers accessed Pleasant’s CSLI without procuring an official warrant. Instead, the officers acted under § 2703(c) of the Stored Communications Act to get the information from the cell provider based on showing that the records were “relevant and material” to an ongoing criminal investigation. At trial, Pleasant moved to suppress the CSLI associated with his cellular phone. His argument: that the recent Supreme Court decision in Carpenter v. United States, 585 U.S. (2018) violated [his Fourth Amendment freedom from such a seizure of his information without a warrant. The Supreme Court in Carpenter held that accessing CSLI from wireless carriers violates an individual’s reasonable expectation of privacy in their physical movements and that such information must be obtained by a warrant based upon probable cause. But why, then, did this ruling from the highest court in the land, not hold in Pleasant? Ordinarily, evidence obtained in violation of the Fourth Amendment is not allowed to be introduced at trial. This notion is known as the exclusionary rule. But as is the case with many “rules” of law; there is an exception. For, you see, the exclusionary rule was meant as a deterrence, or a kind of judicially imposed sanction, applied when necessary to enforce the Fourth Amendment so as to deter abuses by law enforcement officers. Thus, the court in Pleasant posits an overriding question: Is there some deterrent purpose being served by excluding the evidence of CSLI in this case? The answer, NO. Here the court found that the law enforcement officers were acting in “good-faith” such that their warrantless access of the CSLI was legally permissible. The law enforcement officers justified their actions by reliance on the Stored Communications Act, which was essentially good law before the Supreme Court ruling in Carpenter. Somewhat ironically, law enforcement officers probably had no idea that legal issues concerning CSLI raised in Carpenter, was to be heard by the Supreme Court during the course of their investigation. Maybe it was by dumb luck, or perhaps it was by clever arguments from counsel, that the court in Pleasant held that an officer’s good-faith reliance on a federal statute that operated as controlling precedent at the time, sufficed to permit the CSLI as evidence. It must be understood that the relevant provision of the Stored Communications Act that the law enforcement officers relied upon in Pleasant is no longer operative in light of the Supreme Court’s decision in Carpenter. That is, accessing CSLI must be done with an official warrant. Merely claiming that CSLI information is “relevant” to an ongoing criminal investigation is unlikely to be sufficient justification for a warrantless seizure of that information from cell providers. What happened in Pleasant might be an oddity and such circumstances are unlikely to repeat again.[ JAT is a second-year law school student at Seton Hall University School of Law pursuing an Intellectual Property Concentration along the Technology and Business Law track. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What are the Consequences of Willful Manipulation of Evidence in Discovery?

Author: Dana KutzlebCase Citation: Lawrence v. City of New York, 1:15-cv-8947 (S.D. N.Y. July 27, 2018)Employee/Personnel/Employer Implicated: Client/Plaintiff, Plaintiff’s AttorneyeLesson Learned: Willful Manipulation of Evidence in Discovery Can Lead to DismissalTweet This: That’s So Meta(data): Staged Photos Grounds for Dismissal in Civil Rights Case A picture is worth 1,000 words. In the context of a lawsuit, the right picture could be worth much more, millions in fact, because seeing is believing, and there is nothing that convinces a jury like a snapshot of a scene exactly as a party describes. That is exactly what Angela Lawrence was thinking when she gave photos to her attorney to verify her claim that police entered her home without a warrant, threw her to the ground, and violated her civil rights: her allegations of misconduct corroborated by photos showing the state of her apartment when police finally left. A big problem for her, however, is that metadata records when a photo is taken, and these particular photos showing damage allegedly done by officers were taken two years after they left. In Lawrence v. City of New York, Angela Lawrence brought suit against New York City arising from an incident where police officers allegedly entered her home without a warrant, threw her to the ground, and damaged her property. Her attorney was Jason L. Leventhal, who received what his client said were photographic evidence of damage and converted them into PDFs and produced them to the other side as part of discovery. These photos were staged, however, and Lawrence took the photos two days before she relinquished them to her attorney, about one year after the commencement of her lawsuit and two years after the damage was supposed to have been done. In her depositions, Ms. Lawrence’s testimony relating to the pictures became contradictory: first, she asserted that a son and a friend took the photos, then that it was only her son, and finally that she had taken some of the photographs herself. Attorneys for the City quickly sought to have the photos produced in their native form. Upon inspection of the metadata, which tracks the time at which a photo is captured, revealed that 67 of the 70 photos were taken nearly two years after the incident was said to have occurred. The Defendant quickly moved for dismissal, and for Ms. Lawrence and her attorney to be sanctioned, her for the willful manipulation of evidence, and him for failing to verify the story the client told. The District Court was troubled by the attorney’s uncorroborated faith in his client but ultimately ruled that Leventhal, while “careless,” was not sanctionable. Ms. Lawrence did not fare so well, however. The Court was too concerned with the fraud upon the court to allow the case to continue and, pursuant to its powers, dismissed the case in its entirety. The Court denied the Defendant’s request for attorney’s fees and costs, in part because it would be a “hollow victory” because Ms. Lawrence, a single mother who rents an apartment, was of limited means. Ultimately, a few lessons can be gleaned from this case. First, do not manipulate evidence to be produced in discovery. It undermines the very institution of the courts, and the tracking on technology makes it near-impossible to hide. Second, in this new technology-driven world, attorneys are expected to verify client’s claims when it comes to e-discovery and not blindly accept the representations of their clients. Third, if you sense something, say something. Attorneys for the Defendant trusted their gut when presented with the inconsistent testimony of Ms. Lawrence and sought the reproduction of the photos in question in their native form. Without this instinct, it is possible this fraud never would have been revealed, and a jury could have awarded damages based on manipulated photos. Dana Kutzleb, a third-year law student at Seton Hall University School of Law, focuses her studies in criminal law. Prior to law school, she graduated from Seton Hall University with B.A. degrees in political science and classical studies. In law school, Dana participated in the Seton Hall Center for Social Justice’s Criminal Defense Clinic and will clerk for a presiding criminal judge in the Superior Court of New Jersey upon graduation. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Is One Issue Defendant Airline Companies Can’t Fly Away From? A Defective TAR process.

Author: Maria A. GrajalesCase Citation: In Re Domestic Airline Travel Antitrust Litigation, No. 15-1404, 2018 WL 4441507 (D. D.C. Sept. 13, 2018).Employee/Personnel/Employer Implicated: Outside Counsel, Information Technology Professional eLesson Learned: Although TAR is a useful document review tool, attorneys cannot blindly rely on the accuracy of this process. Attorney and discovery specialist must be careful and ensure that this process is functioning properly and is based on accurate metrics or risk delays in the litigation process.Tweet This: Airlines cannot fly away from an ineffective TAR process but must deal with the consequences of a discovery extension. Practitioners are increasingly becoming “tech savvy” and are taking advantage of technology to facilitate the practice of law, specifically in the area of discovery. TAR, which stands for technology-assisted review, is one such tool that has cut the time and costs associated with discovery. TAR combines technology and analytical processes in order to help practitioners sort and review voluminous discovery requests. Its successes, however, are not without issues, and it is incumbent on practitioners to ensure the accuracy of the TAR process relied on. In Re Domestic Airline Travel Antitrust Litigation highlights the importance of ensuring that the TAR process relied on functions properly and that the parties are complying with TAR protocols. In this case, the court granted Plaintiffs’ motion for an extension of time to complete discovery after plaintiffs discovered an issue with Defendants’ document production. Bad metrics leads to more work. Plaintiffs claimed that Defendants relied on a deficient TAR process that produced “more than 3.5 million [core] documents to the Plaintiffs, but . . . only approximately 17% or 600,000, of the documents produced are responsive to Plaintiffs’ requests,” thereby rendering Defendants’ TAR process unreliable. Plaintiffs, thus contended, and the court agreed, that this deficiency in Defendant’s TAR process merits an extension to the discovery deadlines. To ensure that the TAR process was effective, the parties entered into a validation protocol whereby Defendant was required to validate the accuracy of its TAR process by “reviewing a statistically representative sample of documents.” Upon reviewing the TAR validation metrics relied on by Defendants, Plaintiffs found that the TAR process was alarmingly deficient. In fact, the metrics revealed a mere precision rate of 16.7%. After further investigation, Defendants revealed that “it had incorrectly reported the control set metrics . . . .” This revelation led Plaintiffs to conclude that the TAR process previously relied on was grossly inaccurate and that they would need to review all 3.5 million documents themselves. The importance of accurate metrics. An effective TAR process depends on accurate metrics. This means that practitioners cannot rely on a particular TAR process if the metrics upon which the process depends on are skewed or inaccurate. Defendants here acted improperly when they shared with Plaintiffs a TAR process that was based on inaccurate metrics. This caused Plaintiffs to rely on those results. Based on those results Plaintiffs agreed to a set of discovery deadlines. Plaintiffs arguably would not have agreed to that particular discovery schedule had they known that they would be responsible for analyzing 3.5 million documents as opposed to 600,000 documents. If the TAR process was correct from the beginning, Plaintiffs would have likely asked for a longer discovery period and would have eliminated the need for litigating a discovery extension. From this grave mistake, practitioners are reminded of the importance of ensuring that TAR processes and the metrics upon which these process’ rely are accurate. Practitioners should check with the IT, discovery, and/or metrics specialist that are responsible for calculating and putting these together that all calculations and standards are followed accurately. The best practice would be to double check the metrics and TAR process before they are shared with the opposing party. Maria is a third-year law student at Seton Hall University School of Law and is expected to graduate in January 2020. She earned a B.A. in Political Science from Montclair State University in 2015. Maria is interested in the area of complex litigation. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Should a Party Do When Filing a Renewed Motion to Compel? The Secret to Getting Your Motion Granted

Author: Kiersten A. Fowler Case citation: Firefighters' Ret. Sys. v. Citco Grp. Ltd., Civ. Action No. 13-373-SDD-EWD (M.D. La. Jan. 3, 2018) Employee/Personnel/Employer Implicated: Firefighters’ Retirement System eLesson Learned: When you’re requesting that more documents be produced, be specific in demanding what you want and why you want. Tweet This: Going back to square one: the key to getting a judge to grant your Renewed Motion to Compel. Any lawyer will tell you that as a basic rule of any aspect of litigation, “you can’t always get what you want.” This is especially true in discovery, and it is a frustrating situation when you feel as if the other party is holding out on you once you receive the results of their document production. However, you’ll carry a heavy burden if you assert a Renewed Motion to Compel, so make sure you are ready and have the full strength necessary to overcome carrying that burden to a panel of judges. Firefighters’ Retirement System v. Citco Group Limited is a cautionary tale of how seriously courts take the Federal Rule of Procedure 26(b) when a party files a Renewed Motion to Compel. Document production can be a tedious task, so being asked to perform the same production twice is a dreadful fate. Luckily courts agree with that and thus will refuse to bestow that horrid fate on anyone… unless the other party has a good reason for it. So, if you’re that other party, learn what is and what isn’t a good reason enough to be granted a Renewed Motion to Compel. The contentions made by Firefighters’ Retirement System (FTS) is a good example of an arbitrary reason: statements given by a single employee during one deposition. FTS was concerned with how Citco gathered the information to respond to interrogatories and requests for productions, and rightfully so requested and was granted a deposition pursuant to Fed. R. Civ. P. 30(b). One Citco employee’s deposition, Mr. Diver’s, wound up serving as the sole basis for FTS’s Renewed Motion to Compel, as FTS believed Diver’s responses showed a clear flaw in both the list of custodians and electronic search for documents. The court was not nearly as convinced. In denying the Renewed Motion to Compel, the court strictly adhered to the language of Fed. R. Civ. P. 26(b). Specifically, the Court focused on two key elements: (1) FTS’s reason for the motion, and (2) weighing that reason against the fate of performing document production TWICE. Regarding the first element, the Court noted that FTS’s reasons were far too broad. In its analysis, the Court referenced the importance of “meet and confers” where parties should be explicit in addressing any foreseeable issues about disclosure, discovery, and the preservation of ESI pursuant to Fed. R. Civ. P. 26(f)(3)(C). This conference was held, the parties came to an agreement, and yet FTS was still unsatisfied with the documents that came as a result of Citco’s document production. Without a specific reason as to what FTS would have done differently in this meeting, (e.g., asserting that there should have been specific custodians or search terms added in the second production to make up for the allegedly “flawed” first production), FTS’s request simply wasn’t going to be granted. In regard to the second element, the court moved their scrutiny to what FTS was actually requesting. Without reason, FTS demanded more be done. These requests included a mass email questionnaire to all Citco employees questioning their personal knowledge of the issues of the lawsuit, accurate responses from all employees, and individual searches of the personal computers of certain employees. Considering what was at stake, the court found this completely unreasonable, and rightfully so. Thus, if you ever find yourself propounding a Renewed Motion to Compel, give more reasons than FTS and fewer demands. The test under Fed. R. Civ. Pro. 26(b) is a balancing test, so the reasons should always outweigh the demand and burden on the other side. Lastly, it is equally as important to address what Citco did correctly: they gathered their documents from the three general sources that should be collected from. Take note: (1) hard copy files of each Citco Defendant entity, (2) the shared hard drive files of each Citco Defendant entity, and (3) email files of the 21 agreed-upon custodians using 56 agreed-upon search terms. Courts don’t want to force lawyers to “go back to square one” in document production efforts because we live in an era where vast amounts of electronic information are available for review. It is because we live in this era that courts have not and will not expect a party to meet a standard of perfection in document production. The lesson is simple: when you’re producing documents, do your due diligence, and when you’re requesting that more documents be produced, be specific in demanding what you want and why you want. Kiersten Fowler earned a B.S. in Biochemistry and a B.A. in Classical Studies from Seton Hall University in the highly regarded Honors Program. She is currently pursuing her J.D. at Seton Hall University School of Law (Class of 2019). After law school, Kiersten will be working for Haug Partners, LLP, a mid-sized Intellectual Property firm in Manhattan. She is hoping to specialize in both patent litigation and patent procurement, but is open to exploring other areas of IP Law during her career. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Can deleting information be considered spoliation? Not easily.

Author: Matthew T.Case Citation: Steves and Sons, Inc. v. JELD-WEN, Inc., No. 3:16-cv-545 (E.D. Va. May 1, 2018)Employee/Personnel/Employer Implicated: Consultant, Developers of Manufacturing PlanteLesson Learned: Spoliation can only be shown if the documents should have been preserved, the documents are “lost” because of the implicated party not taking steps to preserve, and if there is no way to restore or replace what the documents would have said or shown.Tweet This: It’s not spoliation just because you pressed delete – accusing parties must do their due diligence. When does document deleting turn into spoliation? The defendants in the Steves and Sons case learned that just because you deleted something, even if you knew it may help the other side in a lawsuit, does not mean the court should use your deletion against you. In this case, a consultant hired by developers of a manufacturing plant deleted documents that may have incriminated them on a trade secret misappropriation claim. In the end, even though the court noted that the consultant either knew or should have known that he was under an obligation to preserve these documents, the court found that there was no spoliation. Although the actions taken by the consultant and developers were not ideal, they still were not illegal. The consultant, in this case, e-mailed the developers and explicitly stated that he recommended they delete certain documents that his ex-employer could use to “make trouble for [the consultant and the developers].” The consultant even went so far as to say that he knew of situations like this in which his ex-employer filed lawsuits claiming misappropriation of trade secrets, and that “some of the financial information that I’ve passed to you might cause us trouble.” Thus, he decided to delete an extensive amount of various documents so that they would not “be forced to send them anything that would give them even a remote basis to continue with proceedings.” When the consultant’s ex-employer did eventually sue, they asked for these documents that were deleted. Because they were not provided, the ex-employer sought a spoliation sanction – essentially, that a jury could infer that the documents deleted were incriminating and that he deleted them because they were incriminating. Obviously, at face value, this exchange of e-mails does not look good for anyone involved. One would assume that the Court found that spoliation had occurred. This assumption, however, would be wrong. When examining claims of spoliation, courts need to find four things: (1) the documents should have been preserved; (2) the documents were lost; (3) the loss was due to the person’s failure to take reasonable steps to preserve the documents; AND (4) the documents cannot be restored or replaced by other forms of evidence. In this case, the Court found the first three to be true but did not find the fourth. Thus, simply deleting documents because you think they can hurt you does not by itself lead to a spoliation claim. This is not to say that you should delete potentially incriminating documents – in fact, I would highly advise against it. However, if you have deleted information, the other party must do its due diligence to show that either the information cannot be restored through forensic examination of hard drives or replaced by other documents that show similar information that the deleted documents would have shown. If the other party does not do their due diligence, there cannot be a successful claim of spoliation, and your deletions cannot be used against you. Even with all of this in mind, the best way to avoid a possible spoliation claim is to be responsible. If you have a deletion policy, then continue it until you believe that the documents will be sought through impending litigation. If you have no reason to believe a lawsuit is about to be filed, continue your deletion policy without being worried. Want to read more articles like this?  Sign up for our post notification newsletter, here. Misc.:Fed. R. Civ. P. 37(e)

What happens when you don’t follow the courts orders concerning discovery and document production?

Author: Elliot M. HirschCase Citation: Davis v. Electronic Arts Inc., 2018 WL 1609289 (N.D. Cal. 2018) eLesson Learned: If you don’t follow the specific instructions a court order delineates you will not be able to find a loophole and avoid culpability. They can and will sanction you for not following their orders.Tweet This: NFL players file a lawsuit against EA’s Madden NFL game and wish they were as good on the field as they are in the courtroom Anytime you deal with an NFL player you know they aren’t going to be a pushover. These guys live on the gridiron and are an inspiration to people worldwide. If you try to take advantage of them, they will let you know that they aren’t having it. EA Sports created a famous NFL game called Madden. What EA tries to do best is create NFL figures that look exactly like the real-life players. The NFL players sued EA on the basis that they were misappropriating their rights by infringing on their likeness without proper authorization. What occurred after the lawsuit is that EA requested certain documents in discovery and certain communications between the players and others. They did this because they stated that these communications and documents would provide EA the information to protect itself from this lawsuit. The court on September 15, 2017, made an order granting EA’s request for certain discovery and amending responses pertaining to interrogatories and production of documents. There were multiple levels of requests that EA was demanding. The court found their arguments warranted pursuit and therefore granted their motion. Thereafter, the NFL player Plaintiffs failed to follow the court order and EA made a motion for sanctions and other relief. The court went through a detailed account of all the things that the plaintiffs neglected to do pertaining to its order. The court went through each demand and in some cases stated that the Plaintiffs were not liable but in most of them, the court stated that the Plaintiffs failed to properly follow the court order. For example, the court stated that because the Plaintiffs' didn’t comply with the court's order regarding Interrogatory Nos. 13 and 14, they sanctioned them in the sense that they only allowed the Plaintiffs to assert any action concerning the economic value in Plaintiffs' names, images, identities, and/or likenesses. This was done in order to punish the plaintiffs and now they were limited in their capability to sue EA. In another way, the court relied upon Fed. R. Civ. P. 37(c)(1) by prohibiting the Plaintiffs from introducing or relying upon, in a motion, at a hearing, or at trial, any documents that they have not previously produced in discovery, absent substantial justification. EA requested $40,000 in monetary sanction. The court concluded that $25,000 was warranted in conjunction with the evidentiary consequences. This was because EA was not able to furnish proper billing records concerning the attorney fees. In conclusion, it is apparent that by not following the court's order the court imposed some severe sanctions that hampered the NFL players ability to sue EA for what they were seeking. It is crucial to ensure that one fully follows a court order in order to retain its capability to legally pursue one’s rights. Elliot M. Hirsch is a third-year law student at Seton Hall Law school. Before attending law school, Mr. Hirsch was a semi-professional tennis player training with some of the best tennis players in the world. Additionally, Mr. Hirsch was a Math teacher and tutor for students in middle school and high school. Mr. Hirsch has taught over 3500 students ranging from Honors programs to students with severe learning disabilities. Want to read more articles like this?  Sign up for our post notification newsletter, here.

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    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

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