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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Burden, Cost, and Time

Author: JATCase Citation: U.S. ex rel. Proctor v. Safeway, Inc., No. 11-cv-3406 (C.D. Ill. Mar. 08, 2018)Employee/Personnel/Employer Implicated: AlleLesson Learned: Responding to a discovery request as too burdensome, cost prohibitive and that the request cannot be completed within the timeframe of discovery is a fact-intensive inquiry.Tweet This: Motion to compel is granted in (key) part. Overly burdensome. Cost prohibitive. Cannot be accomplished with the timeframe of the discovery schedule. These are the perennial phrases included in thousands upon thousands of responses to motions to compel electronically stored information. In U.S. ex rel. Proctor v. Safeway, Inc., the relator requested various ESI including Safeway’s pharmacy transaction data (PDX Data). Negotiations ensued, and eventually Safeway produced 260, 640 Bates numbered documents and approximately 575,000 issue files in native format. A keyword search was used to collect issue files, but were not reviewed to see if the produced documents were responsive to Proctor’s Request. Some of the issue files contained incomprehensible symbols. Moreover, Safeway failed to produce the PDX data. Proctor then filed a motion to compel, asking that (1) Safeway review the issue files to identify the non-privileged responsive documents; (2) that responsive documents produced from issue files in Bates numbered tagged image file format; and (3) order Safeway to produce the PDX data immediately. Safeway was met with the response: Proctor’s request is overly burdensome, cost prohibitive, and cannot be accomplished within the timeframe of the discovery schedule. Consistent with the Federal Rules of Civil Procedure one must produce documents that are relevant for discovery, in the manner kept in the usual course of business, in an organized fashion. Part of the ESI request instruction provided that Safeway must produce image files if it created a litigation database, Safeway was not required, however, to produce documents in more than one form. The judge ordered that each issue files be placed with a unique Bates number, that the issue files must be reviewed to identify responsive documents, and that the PDX data must be produced given that Safeway had more than a year to respond to the request. Overly burdensome, cost prohibitive, and cannot be accomplished within the timeframe of the discovery. Could Safeway have been correct? Overly burdensome: Using Technology Assisted Review (TAR), which can expedite the organization and collection of documents, Safeway is able to review the issue files in a manner responsive to Proctor’s request. Safeway further stated that it was willing to place Bates numbers on produced documents during negotiations. Cost prohibitive: Safeway had asked that if the Court orders it to produce image files of the issue files, that the Court order Proctor to pay a significant part of the costs of producing any image file copies. The court, however, did not order Safeway to produce image files, the native format was suitable, so the request for costs was rendered moot. Cannot be accomplished within the timeframe of discovery: As noted above, the judge observed that Safeway had more than a year to comply with the discovery request for PDX files. 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.

Can the Federal Government Use Your Biometric Data to Unlock Your Phone?

Author: Dana KutzlebCase Citation: In re Search of a Residence in Oakland, California, Case No. 4-19-70053 (N.D. Ca. Jan. 10, 2019)Employee/Personnel/Employer Implicated: Federal Law Enforcement Officers, US AttorneyseLesson Learned: There is a Divide Among Courts as to Whether Law Enforcement can Compel Biometric Data to Unlock a PhoneTweet This: Federal Court Says Not So Fast to Rule Allowing Law Enforcement to Use Your Fingerprints or Face to Open Your Phone. If there is a thing in this world that knows everything about us, it’s our cell phone. All of our banking information, music preferences, public images, and most intimate communications are stored on those tiny devices that never leave our sides. They are our safe space, where we can keep all of our most private information conveniently all in one place, but away from the prying eyes of others. For some of the same reasons a phone is so valuable to a person, the Government would like access for crime-solving purposes. In this arena, the law has had trouble keeping up with technology, and the result is an inconsistent litany of legal precedent leaving judges, law enforcement, and ordinary citizens unsure of where the Constitution stands. Even if Fourth Amendment principles are satisfied with respect to the Government’s requests to search a phone, the question of the Fifth Amendment remains. We all know the Government cannot force us to make incriminating statements against ourselves, but what that means in the context of decrypting locked phones remains unclear. It is settled that the Government cannot compel us to give up a passcode to unlock a phone, even with a warrant: we know the Fifth Amendment prevents the Government from forcing us to reveal the contents of our minds. Well, mostly. The question was more difficult when it came to biometrics: the police compel the fingerprints of every person that is arrested and use the information gleaned from those fingerprints all the time. But are cell phones different because the fingerprint is not linking a person to a crime but is instead unlocking a treasure trove of personal data? Generally, both numerous state and federal courts answered in the negative: fingerprints were fair game for law enforcement, even from numerous potential suspects, or the dead. And when Apple introduced facial recognition software to allow users to open their phones simply by looking at them, a court ruled the Government could compel a suspect to use his or her face to open a phone. However widely accepted, these principles were never fully settled among jurisdictions, as one federal court, as early as 2017, decided that to compel the biometric data from a suspect does violate the Fifth Amendment. This brings us to the most recent federal opinion on the issue, decided in January of 2019. In In re Search of a Residence in Oakland, California, the Government sought a warrant granting the authority to compel biometric data from suspects in an extortion case. The California magistrate judge denied the application. The suspects were accused of contacting a victim through the Facebook Messenger app and threatening to publish an embarrassing video of him if he didn’t pay up. Thus, the evidence most vital to the case would be stored on the phones of the perpetrators: not only to see the content of the blackmailing messages but to confirm the location of their origination. While the Court “sympathized” with the Government’s strong interest in the data on the phones, the judge also found that to compel the suspects to use their own biometric information to hand that evidence over unequivocally violates the self-incrimination protections afforded by the Fifth Amendment. Not to worry for the Government, however, as the Court suggested alternative methods to access the sought data, including going to companies such as Facebook directly. Inconvenient, but still an option, and one that does not run afoul of the Constitution. So where does this leave us? It’s unclear; existing court decisions lack any real uniformity. Many experts expect that the Supreme Court will weigh in soon to provide some guidance, but with the ever-changing development of new technology, questions of constitutional import will continue to arise. While the tide on biometrics may well be turning, it seems the (still flawed) best bet for now if you want to keep the Government out of your phone is a passcode.  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 A Consequence Of Using Boilerplate Objections To Discovery Requests? Waiving Objections Goodbye

Author: Maria A. GrajalesCase Citation: Halleen v. Belk, Inc., No. 4:16-CV-55 (E.D. Tex. Aug. 6, 2018)Employee/Personnel/Employer Implicated: CounseleLesson Learned: To object to a discovery request, a party must specifically show “how each request is not relevant or how each question is overly broad, burdensome or oppressive” pursuant to Federal Rule of Civil Procedure 34. Parties should avoid objecting to discovery requests using boilerplate language.Tweet This: Waiving Objections Goodbye. Texas Judge shows no mercy on Defense lawyer who used boilerplate language to object to plaintiffs’ discovery requests. As it is, discovery is cumbersome and time-consuming, but when you add evasive practices to the mix you can expect an exponentially more difficult process. One such evasive practice employed by “savvy” lawyers is the use of boilerplate objections to demands for discovery. Recognizing the danger in this practice, some judges have slapped parties who engage in such practices with serious punishments.   Judge Amos L. Mazzant of the Eastern District of Texas sent shock waves through the legal community with his decision in Halleen v. Belk, Inc., No. 4:16-CV-55 (E.D. Tex. Aug. 6, 2018). In Halleen, Plaintffs’ filed a Motion to Compel Production of Documents and Electronically Stored Information, and Proper, Complete Answers to Interrogatories claiming that Defendant’s objections to their discovery requests were “deficient, inapplicable, and/or without merit.” Defendants objections mainly consisted of “assertions of privilege or contain ‘subject to’ or boilerplate language.” With respect to the Defendant’s assertion of privilege, Plaintiffs further asserted that Defendant failed to supply them with a privilege log to accompany the objections. In response, Defendant claimed that it was not relying on privilege to withhold any information. Rule 26(b)(5), which governs privilege, states that “a party withholding information on the basis of privilege or trial-preparation material must expressly make such claim and” describe in detail “without revealing information itself privileged or protected [that] will enable other parties to assess the claim.” On this issue, the Court ordered Defendant to provide a privilege log for all privilege assertions and if it is not relying on privilege to withhold documents then they must amend their responses. However, Judge Mazzant’s most devastating blow to Defendant was in response to Defendant’s use of boilerplate language in responding to Plaintiffs’ discovery requests. Judge Mazzant waived each of Defendant’s objections when it used such boilerplate language. Waiver is generally a harsh punishment because it imposes more work on the party by requiring it to respond in greater detail to each individual discovery request and also prevents the party from making use of a strategic tool it could have otherwise used.  In a resounding rebuke towards Defendant, the court stated that this “practice is ‘manifestly confusing (at best) and misleading (at worse) and has no basis at all in the Federal Rules of Civil Procedure.” Judge Mazzant went on to explain the problems with the use of such objections: prevents the affected party from properly determining the sufficiency of the response and this party is also left wondering about the “scope of the documents or information that will be provided as responsive.” Ordinarily, a party can object to discovery demands pursuant to Federal Rule of Civil Procedure Rule 34. There, the party “resisting discovery must show specifically . . . how each [request] is not relevant or how each question is overly broad, burdensome or oppressive.” However, parties cannot “refuse discovery simply by making a boilerplate objection that is not proportional. As Judge Mazzant stated use of this blanket statement “goes against the purposes of a just, speedy, and inexpensive resolution.” Finally, in Halleen, the Court granted Plantiffs’ request that Defendant product Electronic Discovery Information for identified corporate custodians and 30(b)(6) witnesses. The Court rejected Defendant’s argument that Plaintiffs’ request was “overly broad and unnecessarily increase the volume of ESI” finding that that “given the ongoing discovery disputes and inability to cooperate the requested relief is necessary.” While lawyers may feel like they are helping their clients by taking a conservative approach towards document disclosure, they may actually be hurting them. Instead of taking this approach and being uncooperative, lawyers, but mostly their clients, are best served when the lawyers comply with the letter of the Federal Rules of Civil Procedure. Lawyers seeking to properly object to discovery demands should refrain from boilerplate language and should comply with Rule 34’s specificity requirement. Then, and only then, can a party be sure to avoid the punishment incurred by Defendant in Hallen. 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.

When Can the Government Access the Location Records on Your Cell-Phone? The Stored Communications Act No Longer Fully Applies

Author: Kiersten A. Fowler Case citation: Carpenter v. U.S., No. 16–402 (U.S. June 22, 2018). Employee/Personnel/Employer Implicated: FBI personnel and police officers involved in the investigation. eLesson Learned: Under the Fourth Amendment, government officials can no longer use the Stored Communications Act to gain access to your cell-site location information on your cellular device unless they have a properly executed search warrant. Tweet This: “Ava was here!” Ever seen something similar? Your cell phone does this to you constantly. Learn how to protect that info. At some point in our lives, we’ve seen a public item vandalized with “[Name] was here.” Well, your cell phone does that to you several times every minute! Whether you know it or not, your cell phone is tracking your every movement, in fact, it has to in order to work. Cell phones need to scan the environment constantly in order to obtain the best signal for the user and most modern devices tap into wireless networks frequently, regardless of if the owner is currently using the phone or its features. However, what happens when the government wants that information to investigate a crime? When a cell phone connects to a network, those are called “cell sites,” and each time within that minute that your phone connects to one, it leaves a time-stamped record called cell-site location information (CSLI). To put this in perspective, in 2018, the United States was home to 326 million people, yet there were an estimated 396 million cell phone service accounts. Just think of how many CSLIs must exist based on those voluminous numbers. So, it makes sense why the government would want access to that information during investigations, but what about an individual’s right to privacy? In Carpenter v. U.S., the court was presented with that question, a question debated for centuries: what should be done when an individual’s privacy rights are put against the need for protection, protection that is secured through government investigations. The holding, in this case, was unprecedented. In a 5-4 decision, Justice Roberts held that the Government is NOT able to access historical cell phone records that comprehensively expose the user’s past movements chronologically under the Fourth Amendment. This groundbreaking decision in 2018 found its origins back in 2011 when the FBI was investigating a group of serial radio-shack and (ironically) T-Mobile store robbers in Detroit who were already arrested. Prosecutors moved to obtain many of the subjects’ cell phone records under the Stored Communications Act. (SPOILER ALERT: the holding literally “broke” parts of that act, completely changing the privacy rights of individuals.) Carpenter, one of the defendants, fought back, arguing that the cell-site data should be suppressed because it was obtained without a warrant supported by probable cause; a direct violation of the Fourth Amendment. Lower courts denied the motion, but SCOTUS (or at least the majority), felt differently. With privacy interests at stake, the court grappled with similar ideas such as the third-party principle, which allows the government to look at telephone numbers and bank records because cell phone carriers and banks are considered “third parties.” Justice Roberts made a powerful distinction due to the unique nature of cell phone location records: detailed, encyclopedic, and effortlessly compiled. There is a legitimate expectation of privacy to keep these CSLIs to the individual because a person does not completely surrender their Constitutional Right just by venturing out into the public sphere. I mean think about it, if the Court ruled otherwise, we would all essentially be allowing law enforcement to secretly monitor and catalog an individual’s every single movement because access to CSLI records gives them just that. Justice Roberts even went as far as to compare a cell phone to a “feature of human anatomy.” We carry our cell phones everywhere, in our pockets at all times, and the cell phone faithfully follows all while gathering this sensitive location data in order to function. I like to think of it as your own personal tracking device! The lesson here is no lesson at all, but instead, an opportunity for you to know your rights and feel secure in Supreme Court’s protection of your privacy (or at least in this narrow and rare circumstance). Feel free to roam the public sphere! However, know this: the government can overcome your Fourth Amendment rights with a search warrant based on probable cause and with reasonable grounds that the records are relevant and material to the investigation. Justice Roberts was sure to remind us all of that in his opinion. This case will surely be applied to a broad range of technological issues, including e-discovery, especially as technology develops more and more. The progress of science in technology should not erode Fourth Amendment protections. As Justice Brandeis once said in a dissent from 1928, the court is obligated to maintain those Constitutional Protections as invading privacy becomes more easily accessible to the government. That obligation still applies almost 100 years later. With that, if you are a government officer, know that science has granted you a new and powerful tool in carrying out your responsibilities. But with great power comes great responsibility, so get a search warrant. And to all others, if find yourself in trouble with the law, don’t be so quick to assume you’ll be safe from “big brother.” Remember, your phone or watching you (well tracking your every movement – but close enough, right?). 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.

Boilerplate Titles Aren’t Acceptable – Neither Are Boilerplate Objections

Author: Matthew T.Case Citation: Wesley Corp. v. Zoom TV Products, LLC, 2:17-cv-10021 (E.D. Mich. Jan 11, 2018)Employee/Personnel/Employer Implicated: Defense CounseleLesson Learned: Objecting to an interrogatory or a request for production without both explaining how it is deficient and specifying how the objecting party would be harmed if forced to answer/produce is not permitted and can lead to sanctions.Tweet This: Boilerplate objections not enough – you must explain why. “Objection – vague, overly broad, unduly burdensome, harassing, and/or seeking information that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence.” This is the easiest way to respond to an interrogatory or request to produce. It is also the easiest way to be forced to pay your opposing party’s attorney’s fees. Many see this language when receiving answers to interrogatories and requests for production from their opposing party. However, many courts have ruled and continue to rule that this is an insufficient and incomplete objection. In the Wesley case, the defendant responded to many interrogatories and requests for production with almost the exact language stated above. The court criticized and condemned this type of response both by the attorney in question and for attorneys everywhere. The court clearly and unequivocally ruled that boilerplate objections have no place in the discovery process. This directly applies to all eDiscovery-related interrogatories and requests for production of electronically-stored information (ESI). When objecting to a request either for an answer or for production, an attorney must state both (a) how the discovery request is deficient, and (b) how the objecting party would be harmed if it were forced to respond to the request. That means that when someone asks you to pay for someone to scour extensive amounts of ESI to produce a document, you cannot just say that it is unduly burdensome. Rather, you must say why it is unduly burdensome. You must tell your adversary and the court why you believe that the request is unduly burdensome. Likewise, explanations must be given describing why a request is vague, harassing, seeking irrelevant information, and/or is not reasonably calculated to lead to the discovery of admissible evidence. This is especially important in cases that deal with extensive eDiscovery, as many judges may not understand the intricacies, burdens, and costs that accompany eDiscovery requests. Failure to explain an objection beyond a few words can lead to sanctions by a court. In the Wesley case, the Eastern District of Michigan made clear that wasting the court and your adversary’s time by unsatisfactorily objecting to a discovery request will lead to sanctions. This court awarded attorney’s fees to the plaintiff due to the defendant’s insufficient objections. If an attorney fails to explain, even if they have a valid objection, it is now clear that they will be sanctioned. Thus, it is imperative that an attorney fully explains why they are objecting to a discovery request, especially in the eDiscovery context. Want to read more articles like this?  Sign up for our post notification newsletter, here.

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.

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