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.

New to the eDiscovery world?

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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Contribute to eLessons Learned

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When National Security is Involved, the Rules for e-Discovery Change

Author: Caiti DerenzeCase Citation: In re National Security Letter, No. 16-16067 (9th Cir. July 17, 2017).Employee/Personnel/Employer Implicated: EmployerseLesson Learned: Service providers may not disclose to users that their data has been sent to the government.Tweet This: A gag order on service providers allows the government to conduct e-Discovery in secret. In July 2017, data privacy advocates lost an e-Discovery fight in the United State’s most historically liberal circuit. The Ninth Circuit held In re National Security Letter that it is constitutionally permissible for the government to place a “gag order” upon a service provider to prevent said provider from notifying a private individual that the government obtained their data. The Ninth Circuit’s decision is significant because it turns the concept of e-Discovery on its head. Traditionally, when parties engage in e-Discovery, they are notified when they have been served with a subpoena and know who is seeking their electronically stored information (“ESI”). However, when the government expresses national security concerns, it may utilize a National Security Letter to side-step a subpoena’s customary notice requirement. A National Security Letter is an administrative subpoena issued by the federal government to wire and electronic communication service providers seeking user information. When this letter is issued to a provider, it is forbidden to disclose to its users that their data was given to the government. Essentially, the service providers are subjected to a “gag order.” Service providers have challenged this gag order through litigation. In Twitter v. Sessions and In re National Security Letter, the respective petitioners argued the national security letter gag orders constituted an unlawful, content-based prior restraint on speech violates the First Amendment. In response, the government asserted that the gag order is necessary because if investigative subjects knew they were being investigated, it could compromise the work of law enforcement. A court analyzes content-based restraints on speech through a strict scrutiny lens. For a restraint on speech to be constitutional under the strict scrutiny test, the government must demonstrate that the gag order requirement is: (1) narrowly tailored; and (2) serves a compelling government interest. The Ninth Circuit in In re National Security Letter held that the gag order passes the strict scrutiny test. First, the Ninth Circuit confirmed that a compelling government interest exists because the gag order involves national security concerns. The Ninth Circuit then examined whether the gag order requirement was narrowly tailored. The petitioner argued that the gag order was overly restrictive because it barred merely notifying the data user and because it allowed the government to keep it in effect indefinitely. Unfortunately for data-privacy advocates, the Ninth Circuit rejected the petitioner’s argument and held that the gag order was narrowly tailored. Since data privacy advocates were unsuccessful in the most liberal circuit court, it is unlikely they will succeed in the others. Therefore, practitioners and clients, who are normally aware of what data their adversaries possess, must keep in mind that the government may have a client’s data without them ever knowing. Caiti Derenze graduated from the College of the Holy Cross located in Worcester, Massachusetts where she earned a B.A. in Political Science in 2013. Prior to attending Seton Hall University School of Law, Caiti taught 5th grade and Kindergarten as a Teach for America corps member in Miami, Florida. After graduating law school in May 2018, Caiti will serve as a clerk to a judge in the Appellate Division of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here.

How should a party draft its objections to it’s opponent’s discovery requests? Very carefully!

Author: Sarah E. Hsu WilburCase Citation: Fischer v. Forrest, Nos. 14-cv-1304 & 14-cv-1307, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017)Employee/Personnel/Employer Implicated: Company and Company’s CounseleLesson Learned: Counsel beware: If you do not carefully object to your opponent’s discovery requests with specificity and indicate whether you are withholding any materials based on those objections in your responses, a court could deem all objections (other than privilege) as waived.Tweet This: Warning: Be specific in objecting to your opponent’s discovery requests or risk waiving all objections (except for privilege). If you are going to object to a discovery request, including eDiscovery requests, you should be prepared to state with specificity why you are objecting and whether you are withholding any materials based on those objections. Otherwise, you risk waiving all objections (other than privilege). The general boilerplate objection language such as objecting because something is “overly broad and unduly burdensome” that many attorneys used for so long in responding to discovery requests is no longer sufficient, and hasn’t been for some time now. Yet some attorneys still continue to use such boilerplate language that violates the Federal Rules of Civil Procedure (FRCP) as amended in 2015—specifically Rule 34, which clearly states that in objecting to discovery and ESI request responses, parties must state, among other things, with specificity any ground for objecting to these requests. At least one district court appears fed up with these ongoing non-compliant discovery responses and commented that “[i]t is time, once again, to issue a discovery wake-up call to the Bar in this District.” In this case, the defendants objected to the plaintiff’s discovery requests with seventeen “general objections” including a boilerplate objection to “information that is not relevant to the subject matter of this litigation, nor likely to lead to the discovery of relevant, admissible evidence.” The court noted that the 2015 amendments to FRCP 26(b)(1) limited discovery to material “relevant to any party’s claim or defense,” not material “relevant to the subject matter of litigation,” so defendants using the latter language contravened the rule. The court similarly stated that the test since the amendments has been “whether evidence is ‘relevant to any party’s claim or defense,’” not the old test of whether it is “reasonably calculated to lead to admissible evidence,” so defendants using this language also did not comply with the rule. The court said, “lawyers need to remove [this language] from their jargon.” As an example, the plaintiff requested the following documents be produced in discovery: “All emails, correspondence, letters and other written communications between any employee, agent, officer, director, or member of Defendant and Plaintiff from 2008 to present.” The defendants objected to this request, stating that it was “overly broad and unduly burdensome,” which the court said was “meaningless boilerplate” and followed that statement by asking “Why is it burdensome? How is it overly broad? This language tells the Court nothing.” The court concluded that the defendants’ objections violated FRCP 34 in a number of ways. First, they were not specific enough. Rule 34(b)(2)(B) as amended in 2015 requires that with respect to discovery and ESI request responses, parties must state with specificity any ground for objecting to these requests. The defendants’ general boilerplate responses were not sufficient to comply with this rule. Second, the defendants’ objections did not indicate whether any responsive materials were being withheld on the basis of their objection, which Rule 34(b)(2)(C) requires parties to do (because it is meant to help prevent confusion over “whether any relevant and responsive information has been withheld on the basis of the objections” in cases where a party objects but still produces some information). Third, for the documents and ESI the defendants did not object to producing in discovery, they failed to state the time frame during which they would produce that requested information, which they were required to do under Rule 34(b)(2)(B). The court ultimately ordered the defendants to revise their objections and discovery request responses to comply with the Rules. The court then concluded by giving this warning for future attorneys to heed: “It is time for all counsel to learn the now-current Rules and update their ‘form’ files. From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).” Sarah is a Seton Hall University School of Law student (Class of 2018), pursuing an Intellectual Property concentration through the Privacy and Security Law Track. After graduating, she will begin working as a Litigation Associate in a large Manhattan law firm. Sarah graduated from the University of Florida in 2009 with a B.S. in Journalism, and she worked as both a multimedia journalist and a legal assistant before attending law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Can a Federal Judge Do When There is Bad Behavior in Discovery? Sanction, But Not Punish.

Author: Preeya SoniaCase Citation: Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017).Employee/Personnel/Employer Implicated: CompanyeLesson Learned: Defendant caused discovery in this case to last several years by withholding testing information for its product and giving slow and unrevealing responses to Plaintiffs’ repeated requests for information. However, due to Defendant revealing this information in another case, Plaintiffs were made aware of the existence of this testing information. Defendants should not have withheld this information and caused discovery to span over several years. Defendants should have turned over the information requested by Plaintiffs.Tweet This: Defendant withholds info for many years – Plaintiff finds out anyway. In this case, Plaintiffs repeatedly requested internal test results for the G159 tire made by Defendant. Defendant’s responses were slow and when it did respond, gave generic, unrevealing information. Defendant withheld the rest results for its G159 tire, causing discovery to last several years. Finally, the Plaintiffs, exhausted with their efforts, settled the case. However, months after the settlement, Plaintiffs’ lawyer came across an article about another case in which the Defendant revealed the very information that Plaintiffs had sought for years. The test results revealed that the G159 tire got unusually hot at speeds between 55 and 65 mph. This information would have been significant in Plaintiffs’ lawsuit claiming the tires caused their motorhome to flip over on the highway. After Defendant conceded to withholding this information, the District Court exercised its inherent power to sanction litigation misconduct. The District Court calculated that Plaintiffs had spent $2.7 million in legal fees and costs since the first time Defendant acted with bad faith discovery behavior. The court stated that because Defendant’s behavior rose to “truly egregious level,” it could award Plaintiffs with all the attorneys’ fees incurred. The Ninth Circuit affirmed. The Supreme Court disagreed. It noted that federal courts possess inherent powers, one of them being to sanction a bad faith party to legal fees and costs to the other side. However, this sanction must be compensatory, rather than punitive. Thus, the fee can only redress the loss sustained, and cannot incur additional punishment for bad behavior. The court can only shift the amount of attorneys’ fees incurred because of the misconduct at issue. Here, the District Court awarded the Plaintiffs with an amount that extended beyond the legal fees and costs incurred because of Defendant’s withholding of the internal test results of the G159. The District Court went beyond its inherent authority to sanction for misconduct in discovery and awarded Plaintiffs with an amount that included fees incurred in developing claims against other defendants and proving their own medical damages. Thus, the Supreme Court reversed and remanded the case. Preeya Sonia is a third-year law student at Seton Hall University School of Law and resides in Newark, NJ.

What E-Discovery Costs Can You Recover When You Win a Case? Only Costs for the Copying of Electronic Data

Author: Samantha MonteleoneCase Citation: Wisconsin Alumni Research Found. v. Apple, Inc., No. 14-CV-062 (W.D. Wisc. June 6, 2017)Employee/Personnel/Employer Implicated: Wisconsin Alumni Research Foundation; AppleeLesson Learned: Some courts are narrowly construing 28 U.S.C. § 1920 to award e-discovery costs only for the copying of electronic data, including copying metadata and hard drives.Tweet This: “U.S. District Court judge rejects prevailing party’s requests for e-discovery cost reimbursement against Apple in patent dispute” Almost two years after Wisconsin Alumni Research Foundation (WARF) won a $234 million verdict over Apple in a patent dispute, U.S. District Court Judge William Conley ruled in June 2017 that Apple pay another $272 million, including recovery costs permitted under Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920.  In his decision, Judge Conley deliberated just what e-discovery costs are recoverable to a prevailing party. The patent in question relates to a technology called a “predictor circuit.”  The patent, which was awarded in 1998 to WARF, the University of Wisconsin’s property division, describes how the circuit can improve a processor’s performance inside a device.  The “predictor” element to the technology allows the processor to anticipate a user’s commands to the system before they are made so it can respond more quickly. WARF sued Apple in 2014, alleging that the company used the patented technology in some of its iPhones and iPads.  Apple, which denied the allegations, contended that it did not infringe and that the patent was invalid.  In 2015, a jury returned a verdict in favor of WARF and awarded damages in the amount of $234 million.  Two years later, in 2017, Judge Conley decided on the issue of recoverable costs, including e-discovery costs. Among other costs, WARF requested reimbursement for e-discovery costs in three areas.  First, WARF sought $115,475.55 for data storage costs for its e-discovery database.  Second, WARF sought $147,757.00 for ESI and electronic discovery work performed by Irell & Manella.  Timesheets describe tasks including converting documents to PDF format, uploading data to the database, preparing documents for production, and creating “review bins.”  Third, WARF sought $30,616 in data purchases made by two of WARF’s experts. In deciding which costs to award WARF, the court adopted a narrow, literal reading of 28 U.S.C. § 1920’s “exemplification and copying” provision, citing the court’s decision in Split Pivot, Inc. v. Trek Bicycle Corp., 154 F. Supp. 3d 769 (2015 W.D. Wisc.), which “interpret[s] narrowly the meaning of ‘making copies’ in § 1920(4) in the context of electronic discovery.”  Under this approach, the court will award e-discovery costs only for the copying of electronic data, including copying metadata and hard drives. Thus, the court first rejected WARF’s request for $115,475.55 for costs of storing its e-discovery database because the purpose was not copying.  The court then reduced WARF’s request for $147,757.00 by 50% ($73,878.50) for the e-discovery bill from Irell & Manella because, the court said, the cost of data management is not reimbursable under § 1920.  The court found that a reduction by 50% was appropriate in light of the commingling of the tasks on the bill and the “difficulty, if not impossibility,” of determining which costs are reimbursable and which costs are not.  The court finally rejected WARF’s request for $30,616 in data purchases made by two of WARF’s experts because these costs do not constitute copying under § 1920. Wisconsin Alumni does not create new law in the field of e-discovery recovery costs, but the decision does advance the law.  With Split Pivot, and now Wisconsin Alumni, we now have two district court decisions in the Seventh Circuit with a rather strict interpretation of § 1920 and its “exemplification and copying” provision.  Perhaps most importantly, this decision continues to tell us just what e-discovery costs are recoverable to a prevailing party. Samantha Monteleone is a third year law student at Seton Hall University School of Law (Class of 2018).  She was born and raised in New Jersey and has plans to practice in the state after graduation.  She has a passion for all things family law but enjoys reading and writing about all vanguard topics in the law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Makes a Friend a True Friend? Judges as Facebook Friends: Not Enough for a Recusal.

Author: Frank McLaughlinCase Citation: Law Offices of Herssein and Herssein, P.A. v. United Servs. Auto. Ass’n, 229 So.3d 408 (FL. App. 2017).Employee/Personnel/Employer Implicated: Company Executive as Witness and Potential Party, Law Firm Plaintiff, Trial JudgeeLesson Learned: If a judge, who is trying a case, is merely Facebook “friends” with any parties in the case, that alone is not enough to seek mandatory recusal of the judge, so do not waste your time and money trying to do recuse a judge in this instance unless there is more proof of the judge’s close, real-life friendship with any of the parties. What happens when a judge trying your case is friends with the opposing side or a witness in the case? This, without getting into the legalese, usually does not pass the “smell test.” After all, what kind of legal system would we be burdened with if a judge is able to try a case, where he is friends with your enemy? Ultimately, we are all human and the law recognizes there are some unsurmountable levels of bias our human minds cannot ignore, so we are able to petition to have a judge recuse herself in this situation if there is a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of an involved party. Typically, if a judge were friends with the defendant or the plaintiff or even a witness, this would help support a reasonable basis to think that judge cannot be impartial. For example, Judge Brown is friendly with Johnny Badstuff, and they play basketball every morning before they part their separate ways. If Johnny Badstuff were to be brought forth on charges of murder in front of Judge Brown, how can Judge Brown impartially weigh the merits both for and against his best bud’s case? BRING ON THE DIGITAL AGE. In this case, the plaintiff sought to have a judge mandatorily recuse himself based merely on the fact that the judge was a Facebook “friend” with a possible witness and possible party to the case.  Reasonable request, right? I mean, if a judge is friends with an involved party to a case, the judge shouldn’t be able to try that case due to lack of impartiality. BUT, is a Facebook “friend” actually a good enough friend to diminish a judge’s impartiality? Here, the answer was no. The Florida Court of Appeals ruled that a Facebook “friend” and that alone is not enough to force a judge to recuse himself in the case. Their reasoning is rock solid. Just because we are friends on Facebook does not mean I am actually friends with you or that I actually have any real-world connection to you. The Court pointed out that many people are friends with random people on Facebook, thanks to Facebook’s patented algorithm that matches random people that may be similar. Also, the Court pointed out that many people are Facebook “friends” with celebrities when they actually have no real connection to that person other than their Facebook bond. Ultimately, being a Facebook “friend” and that alone is not enough to prove a judge is actually friends with anyone UNLESS there is more to substantiate that claim. Frank McLaughlin is currently a law student at Seton Hall University School of Law, and he is in his last semester of his 3L year.  Frank has worked throughout law school and continues to work at Lasser Hochman, LLC, where he is a law clerk and focuses on real estate and finance law.  Prior to attending law school, he attended George Mason University, where he earned a B.S. in both finance and economics. After graduating from George Mason University, Frank worked as an accountant and a consultant for a public accounting firm in Washington, D.C., for three years and then worked in the CFO’s office at Prudential Financial, Inc. in Newark, NJ. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Don’t Google It: Internet Giant Compelled to Produce User Information

Author: Tracy F. BufferCase Citation: In re Search Warrant No. 16-960-M-01, 232 F. Supp. 3d 708 (E.D. Pa. 2017)Employee/Personnel/Employer Implicated: Google CorporationeLesson Learned: Companies must comply with warrants issued pursuant to the Stored Communications Act for user information even if that information is stored outside of the United States as long as the conduct relevant to the focus of the Act occurred in the United States.Tweet This: Google forced to comply with warrant despite its repeated objections This case out of the United States District Court for the Eastern District of Pennsylvania involved a situation where Google was refusing to fully comply with warrants that the court had issued for the electronic data relating to two account holders. Two separate warrants were issued by the court pursuant to §2703(b) of the Stored Communications Act (“SCA”) for data associated with the accounts of several individuals who were targets of two separate federal investigations. Both warrants directed Google to make copies of all of the data and send them to FBI agents in Pennsylvania. It is important to note that the individuals whose data was requested resided in the United States and the crimes being investigated occurred in the United States. Google subsequently refused to disclose all of the user data that was covered by the warrants, so the government filed a motion to order it to comply with the search warrants. For one of the warrants, the court issued an order to show close as to the basis of Google’s noncompliance. In its response, Google argued, among other things, that it was not required to produce data that was stored outside of the United States. As to the other warrant, the court also ordered Google to show cause as to their nondisclosure. Google responded similarly as it did with the other warrant. The court eventually consolidated the two cases and heard oral arguments. The government expressed the importance of obtaining electronic information of criminal suspects that are living in the United States. Conversely, Google argued that it receives thousands of disclosure requests from all levels of government in regards to criminal matters. An important aspect of this decision that warrants discussion is the SCA, which among other things, empowers the government to compel a provider to disclose customer information in one of three of the following ways: subpoena, court order, or warrant. Relevant here, the court can issue a warrant for user information when the government has obtained a warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure. Importantly, Rule 41(b)(5) allows a magistrate judge to issue a warrant for property that is located only within a United States territory, possession or commonwealth, a United States diplomatic or consular mission, or any land owned or leased and used by the United States. The issue in this case whether the warrants for the electronic records of Google user accounts issued pursuant to the SCA can reach the information if it is stored outside of the United States. The court ultimately held that it can compel Google to produce this information as it did not constitute an unlawful extraterritorial application of the SCA.  The court’s analysis focused on a framework put forth by the Supreme Court in Morrison v. Nat’l Australia Bank Ltd. to evaluate the extraterritorial application of the SCA. The first part of the framework asks whether the statute in question gives a clear indication that it is to be applied extraterritorially; both parties stipulated that this was not the case with the SCA.  The second part of the Morrison framework requires the court to look at the statute’s focus and determine whether a particular case involves a domestic application of the statute; essentially this is asking if the conduct relevant to focus of the statute occurred within the United States.  The court, responding to this aspect of the framework, engaged in an analysis as to whether the obtaining of the Google data stored abroad would be a seizure or search of the targets’ data in another country. First, the court held that it was not a seizure because there would be no interference with the users’ respective abilities to access their own data. Next, the court held that there was a search, but the search occurred in the United States because the searches of the electronic data by Google will occur in the United States by Google employees who are located within the United States. Therefore, both cases involved a domestic, not an international application of the SCA despite the fact that the transfer may occur abroad. The court, therefore, ordered that Google comply with the warrant request and granted the government’s motion to compel.  Google erred in refusing to comply with the warrants for the user electronic data. The refusal ultimately led to presumably expensive litigation. Google’s goal was probably to protect user data as much as it could despite the presence of a warrant.  We have seen similar positions from other companies including Apple and Facebook. However, this case shows us that in the course of a criminal investigation, the courts may be unwilling to allow non-disclosure of user electronic information.  That is not to say that companies do not have the right to challenge a warrant, but this decision shows us that just because electronic data may be stored abroad, it does not necessarily mean that it is outside of a warrant’s reach.  Companies will have to comply with warrants issued pursuant to the SCA for user information even if that information is stored outside of the United States as long as the conduct relevant to the focus of the Act occurred in the United States. Tracy F. Buffer will receive her J.D. from Seton Hall University School of Law in 2018. She received her B.A. from Rutgers University in New Brunswick, New Jersey in 2015.  After graduation from law school, Tracy plans to practice corporate law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Does Rule 37(E) Not Apply?

Author: Rachel SmithCase Citation: Hsueh v. N.Y. State Dep't of Fin. Servs., 2017 U.S. Dist. LEXIS 49568 (S.D.N.Y. Mar. 31, 2017)Employee/Personnel/Employer Implicated: EmployeeeLesson Learned: The Court does not recognize the protection of Rule 37(e) when a party acts with the intent to deprive its adversary of the use of evidence. When a party acts in bad faith with the intent to deprive, the Court has made it clear that an adverse inference will, in fact, be appropriate. The Court does not recognize the protection of Rule 37(e) when a party acts with the intent to deprive its adversary of the use of evidence. When a party acts in bad faith with the intent to deprive, the Court has made it clear that an adverse inference will, in fact, be appropriate. In this case, originally a case about sexual harassment at the workplace, the Court expressed its disfavor for a party’s intentional withholding, and destruction of evidence, and therefore found that an adverse inference was an appropriate remedy. The Plaintiff’s false statements and intentional deletion of a recorded conversation with a human resources employee resulted in sanctions, even though the deleted conversation was recovered. The Court found that Rule 37(e) did not apply to this case, because it only applies when ‘a party failed to take reasonable steps to preserve’ ESI; not to situations where, as here, a party intentionally deleted the recording”. The Court used this reasoning as the basis for issuing the spoliation sanctions upon the Plaintiff. The Plaintiff’s story continually changed, specifically surrounding the conversations she had with an HR representative as the case progressed. It was not until the Plaintiff was deposed a second time that she admitted to possibly having recorded one of those conversations. Plaintiff stated that she had deleted the recording due to its poor quality, and therefore “not worth keeping”. Because of this, the Defendant requested spoliation sanctions to be imposed upon the Plaintiff. Miraculously, Plaintiff was able to locate the recorded conversation with the HR representative, stating her husband was able to recover it off of a hard drive. The Defendant continued to seek spoliation sanctions against Plaintiff, because there was no convincing evidence that the recording was fully intact. The Defendant falsely claimed that the recording was not ESI, but the Court did not buy it. The Court did, however, agree with Defendant that Rule 37(e) did not apply to this case. These considerations are not applicable here. It was not because Hsueh had improper systems in place to prevent the loss of the recording that the recording no longer existed on her computer; it was because she took specific action to delete it. The Court, therefore, concludes that Rule 37(e) does not apply. Being that the Court could not rely on Rule 37(e), it stated that it could rely on its inherent power. While the Plaintiff argued that sanctions should not be imposed because the recording was restored, the Court rejected that argument stating several reasons sanctions were appropriate. These included that the recording cut off mid-sentence and that there was no way to be sure that the recording was in fact in its entirety. The Plaintiff had the obligation to preserve any ESI in anticipation of trial, especially because she was the one to bring the trial, and therefore it could have easily been anticipated. This fact coupled with her failure to be truthful lead the Court to issue spoliation sanctions, along with an adverse inference. This is primarily because the Court found that the Plaintiff was intentionally depriving the Defendant of the recording. The Court subsequently ordered attorney’s fees to be paid by the Plaintiff along with the costs incurred in reopening discovery. Rachel Smith, is a Seton Hall University School of Law student, Class of 2018. She received her B.A in Women’s and Gender Studies from Rutgers University in 2010.

When is a Defendant Liable for Spoliation by a Non-Party?

Author: Luke IovineCase Citation: Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017)Employer/Personnel Implicated: Record Company; Third-PartyeLesson Learned: A party (here, a Record Company) can be sanctioned for spoliation and held liable for actions by a non-party when the non-party is under its control. Control is to be construed broadly and is defined as the “practical ability to obtain documents from another, irrespective of legal entitlement.”Tweet This: Sanctions for Third Party Spoliation Ronnie Van Zant, Inc., Gary R. Rossington, Johnny Van Zant, and other trustees and personal representatives (“Plaintiffs”) filed a complaint alleging the violation of a Consent Order and are seeking a permanent injunction against Cleopatra Records and awards of cost and attorney fees against Artimus Pyle (“Defendants”). Members of Lynyrd Skynyrd tragically passed away as a result of a plane crash in 1977. The surviving members agreed to never perform as Lynyrd Skynyrd again. However, in 1988, during a tribute tour, a disagreement arose over the use of the Lynyrd Skynyrd name. Ultimately, the members entered into a Consent Order restricting how the members could use the name and other aspects of the band. One clause stated: “In no event shall [the members] implicitly or through inaction authorize the violation of the terms hereof by any third party.” Pyle, a signatory of the Consent Order, ceased performing with the surviving members in 1991 and signed a termination agreement. Pyle eventually aided and contributed to the production of a Lynyrd Skynyrd film based on the plane crash, a film produced by Cleopatra Records “film affiliate.” Cleopatra hired John Cohn to write and direct the film, however, Cohn was not a Cleopatra employee. Pyle was ultimately contracted to narrate the film and receive 5% of the Film’s receipts, amongst other involvements. Plaintiffs sent Cleopatra a cease and desist letter to stop all production on the film; however, the request was ignored. Pyle worked with Cohn, more specifically, exchanged numerous detailed text messages regarding the movie’s production. Immediately after Plaintiffs sought action against Cleopatra and following the end of filming, Cohn switched cell phone providers, acquired a new phone, and ultimately did not preserve any text messages sent and received from Pyle. Plaintiffs requested the Court issue an adverse inference sanction against defendants for spoliation of text message evidence between Cohn and Pyle and the request was granted. A court can sanction a party if electronically stored information that should have been preserved in the anticipation of litigation is lost because a party failed to take responsible steps to preserve it.  F.R.C.P 37(e). In addition, if the party that failed to preserve ESI “acted with the intent to deprive another party of the information’s use in litigation,” then the court can dismiss the action or enter a default judgment. Id. With respect to Cleopatra’s liability as a result of Cohn’s failure to preserve (non-party), Cleopatra can be sanctioned because the ESI was under its “control.” [ESI} is under a party’s control if the party can practically obtain the [information], irrespective of legal entitlement. Further, the “cooperative relationship” and “common sense” indicates that Cohn’s texts with Pyle were within Cleopatra’s control. Despite an invalid subpoena for discovery of the information, “a district court may impose sanctions for spoliation” without a discovery order. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). In conclusion, Cohn’s actions, within the control of Cleopatra, were deliberate and this type of behavior weighs in favor of an adverse inference. The information destroyed (quality of interaction and relationship between Pyle, the Consent Order’s Signatory, and Cohn, the principal writer and singular director of the Film) was developed through these text messages. The majority held an adverse inference as to the missing text messages was to be presumed against Cleopatra and a permanent injunction the film’s production was granted. Attorney fee’s and costs were also awarded. Want to read more articles like this?  Sign up for our post notification newsletter, here

Just a Quick Peek

Author: Victoria FerenzCase Citation: Fairholme Funds, Inc. v. United States, 681 Fed.Appx. 945 (C.A.Fed., 2017)Employee/Personnel/Employer Implicated: GovernmenteLesson Learned: If you do not want to provide documents and you are claiming privilege, then do not provide any of the documents and hold your ground. Providing some of the documents, but not all of them will lead to the courts ordering you to produce them all in the end anyway. In Fairholme Funds, Inc. v. United States, the Plaintiffs motioned to compel the production of approximately 1,500 documents that the Defendant was withholding pursuant to deliberative process and bank examination privileges. The Plaintiffs sought access to these protected documents pursuant to the “quick peek” procedure authorized by FRE 502(d) of the Federal Rules of Evidence. Absent Defendant’s consent, the court granted Plaintiff’s request and entered an FRE 502(d) order allowing Plaintiffs to review the documents being withheld. The premise of the Defendant’s argument was that they would not produce thousands of documents for the Plaintiff’s because of the privilege that protected them. However, the Defendant’s had previously provided small quantities of documents to the Plaintiffs that were also allegedly protected under privilege. The defendants had previously produced over 3,500 documents in response to a court order, all of which they had also claimed privilege to. In another instance, they produced an additional 22 documents requested by the Plaintiffs. This time around, due to so many battles with Defendant’s surrounding these documents, Plaintiffs suggested that the court allow their use of a “quick peek procedure.” This procedure would allow Plaintiffs to review the 1,500 documents at issue at a time and place determined by defendant, identify the documents they believe are relevant to the case, and request production. Plaintiff’s believed that this was the only way to ensure that they would receive all of the documents they were entitled to in a much faster and more efficient manner. In their view, because the defendants released additional documents each time the plaintiff’s challenged its privilege claims, this remedy was the best solution besides imposing wholesale privilege waiver as a sanction. The court agreed that the defendant’s production of documents was piecemeal, and that this procedure was the best way to facilitate the speedy and efficient conclusion of jurisdictional discovery in this case. It is important to note that the order did contain a clawback provision, which stated that any inadvertent disclosure of information subject to privilege did not waive a party’s claim of privilege for that document or subject matter at a later date. The court stated that its use of the quick peek procedure was not intended as a sanction for any behavior on the defendant’s part, but rather as a means of expediting the completion of jurisdictional discovery in this case and conserving the court’s limited resources. Although the court went out of their way to explain that the use of this procedure was not to be viewed as a punishment, it is a direct consequence of the Defendant’s conduct. The Defendants made it a pattern to give Plaintiff’s a hard time, require Plaintiff’s to use the courts, and then ultimately did provide Plaintiff’s with the documents they requested. These repeated acts are what led the court to grant Plaintiff’s motion for a “quick peek,” to speed things up and stop Defendant from dragging the discovery phase out, costing time, money, and valuable court resources. The Defendant should have made a choice, in the beginning, to either provide all requested documents or claim privilege and provide nothing. Victoria Ferenz is a third year at Seton Hall University School of Law, focusing her studies in the area of Patent Law. She received her B.S. in BioMedical Science from Quinnipiac University. After graduation, Victoria will be clerking in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Preserve, Preserve, Preserve!

Author: Nick Plinio Cases cited: Estate of Shaw v. Marcus, Nos. 14 Civ. 3849 (NSR) (JCM), 14 Civ. 5653 (NSR) (JCM), 2017 WL 825317 (S.D.N.Y. Mar. 1, 2017); Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 283 (S.D.N.Y. 2003); Implicated Parties: Plaintiff’s counsel, Recipient of discovery request, recipient of motion to compel discovery E-Lesson learned:Utilize litigation holds, preserve e-documents and ALWAYS act in good faith and make all reasonable efforts to comply with e-discovery requests because a court has the power to shift the costs of discovery if counsel fails to produce documents requested and it would place an undue burden or expense for the requesting party to obtain them. Tweet this: ATTN all litigators!! Impose litigation holds and urge clients to preserve documents stored electronically or run the risk of facing sanctions or having to pay for forensic computer examinations. Estate of Shaw v. Marcus, a 2017 case out of the Southern District of New York has BIG implications for litigators and all users of electronic document preservation and discovery.  The big picture?  PRESERVE and COOPERATE, or bear not only the cost of discovery, but sanctions as well.    Background The issue in Estate of Shaw stems from the actions of Plaintiff and her counsel during the discovery phase of litigation.  Plaintiff apparently failed to preserve information relevant to the lawsuit contained on a lap top computer, which then required a forensic investigation to extract the information.  Plaintiff’s counsel also repeatedly disregarded requests and court orders to produce this information.  Further, Plaintiff’s counsel invited a third party to eavesdrop on a confidential meet-and-confer and behaved unprofessionally during several hearings before the court.  This conduct formed the basis for Defendant’s motion for sanctions and to shift the costs of discovery to Plaintiff. The Law While there is a presumption that the responding party should bear the expense of complying with discovery, a party may make a motion for the cost of discovery to be shifted upon a showing of good cause.[i]  Zubulake makes clear that cost shifting should only occur where e-discovery imposes an undue burden or expense on the responding party.  "[W]hether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production).”[ii] When documents are inaccessible, Zubulake set forth seven factors to consider before shifting costs to the requesting party.  They are, in order of importance, (1) the extent to which the request is specifically tailored to discover relevant information; (2) availability of such information from other sources; (3) the total costs of production, compared to the amount in controversy; (4) the total costs of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and the incentives to do so; (6) the importance of the issues at stake; and (7) the benefits to the parties of obtaining the information.[iii] The court in Estate of Shaw held that a majority of the Zubulake factors, including the first and second most important factors, weighed in Defendant’s favor.[iv]  It then directed Plaintiff to cover 75% of the cost of the forensic computer analysis.[v] The court also imposed several sanctions requiring Plaintiff to pay Defendant’s attorney’s fees associated with the extra time and resources spent trying to obtain relevant the documents from Plaintiff.[vi] Shoulda, Coulda, Woulda Obviously, Plaintiff’s counsel made some serious mistakes here.  For one, it is always a safe bet to advise clients, especially those with pending litigation, to preserve any and all electronic documents that could be relevant to a lawsuit.  As evidenced in Estate of Shaw, failing to preserve computers, or the files contained within them, could lead to cost-shifting in discovery. That aside, however, Plaintiff’s counsel made an even more crucial error in this case.  In failing to at least address reasonable requests for information and Court Orders to produce such information, Plaintiff’s counsel left himself open to sanctions.  Litigators should take a lesson from this: if an opposing party’s discovery request seems unreasonable or impossible, it pays to address this issue rather than producing deficiently or not at all.  It is this blogger’s view that many of the monetary sanctions imposed in Estate of Shaw could have been reduced or even avoided had Plaintiff’s attorney simply acted in good faith and made reasonable efforts to comply with the requests and Court Orders he received. Nick a Seton Hall University School of Law student (Class of 2018), focuses his studies in the areas of general litigation, labor, employment, and sports law. Want to read more articles like this?  Sign up for our post notification newsletter, here Citations [i] Estate of Shaw v. Marcus, Nos. 14 Civ. 3849 (NSR)(JCM), 14 Civ. 5653 (NSR) (JCM), 2017 WL 825317 (S.D.N.Y. Mar. 1, 2017) (citing Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 283 (S.D.N.Y. 2003) (“Zubulake 3”)) [ii] Id. (citing Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 322 (S.D.N.Y. 2003) (“Zubulake 1”)) [iii] Zubulake 1, 217 F.R.D. at 322; Estate of Shaw, 2017 WL at 7-8. [iv] Estate of Shaw, 2017 WL at 16. [v] Id. [vi] Id. at 17-26.

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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.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg


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