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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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.

Be Careful What You Bargain For

Author:Michael Mondelli III Case Citation:Bailey v. Brookdale Univ. Hosp. Med. Ctr., No. CV162195 (ADS) (AKT), 2017 WL 2616957, (E.D.N.Y. June 16, 2017). Employee/Personnel/Employer Implicated:Plaintiff’s Counsel eLesson Learned:Attorneys should be sure to scrupulously inquire into what sort of information their client is able to produce, both financially and technologically. Tweet this:Make sure that you and your counsel work together to develop a discovery plan BEFORE you negotiate with your adversary. The Plaintiff, Lloyd Bailey, brought an action against Brookdale University Medical Center (“Brookdale”) and Carlos Ortiz (“Ortiz”) (collectively, the “Defendants”) seeking damages based upon Defendants' violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). After the court conducted an Initial Conference with the Plaintiff and Defendants, the parties submitted a fully executed ESI Agreement (the “Agreement”) to the court, which was confirmed by the court. After the Agreement was confirmed, the parties took part in the Court’s required Discovery Status Conference. Despite being freely negotiated over a reasonable amount of time, at the status conference, Plaintiff’s counsel sought to undo various provisions of the Agreement. Even though the court found the Plaintiff’s misgivings retroactive to the Agreement unpersuasive, the court directed plaintiff’s counsel to review the Agreement with an outside vendor, which was provided by the Defendants, to assess costs of discovery. After the assessment from the outside vendor, the Plaintiff filed an Affidavit of Economic Hardship stating that the cost of $2,000 to $3,000 for his emails would create great hardship on him and his family with the Plaintiff only earning $90,000 a year as the sole provider. The Defendants asserted that the Plaintiff could meet this reasonable financial load and that the Plaintiff bore the burden of paying for discovery that his claims necessitated. The court recognized that the general rule was that the cost of production falls on the responding party. However, the court also noted that, under certain circumstances, the court can consider cost-shifting of production expenses to the requesting party. Nevertheless, the court warned that cost-shifting should only occur when electronic discovery imposes an undue burden on the responding party. The court believed that the Agreement was thoroughly negotiated and stipulated, but there was an undue burden on the Plaintiff due to Plaintiff’s counsel. While the court confirmed the Agreement, after further review it found that the Agreement seemed to be designed for use in corporate settings as opposed to the single plaintiff actions at issue here. The court could only conclude that Plaintiff’s counsel did not engage in a meaningful negotiation regarding discovery. Yet, since the Plaintiff chose his counsel, he cannot avoid the actions or omissions of his attorney. Therefore, the court found no grounds to invalidate the Agreement. However, the court did find partial cost-shifting to be appropriate due to the actions of Plaintiff’s counsel and the insistence of the Defendants that the Agreement be followed to the letter. As such, the court order that the Defendants would bear 40% of the discover costs, with the remaining 60% to be borne by Plaintiff’s counsel. Michael Mondelli III received a B.A. in Political Science and Philosophy from Drew University in 2015. He will receive his J.D. from Seton Hall University School of Law in 2018. Present, Michael interns for the U.S. Trustee’s Office. After Graduation, Michael will clerk for a civil judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Spoliation, A Proportional Response

Author: Jason CastleCase Citation: Edelson v. Cheung, Civil Action No. 13-5870 (JLL) (JAD), 2017 U.S.Employee/Personnel/Employer implicated: CEOeLesson Learned: The intentional spoliation of evidence alone is not enough to compel the court to impose a default ruling against the offending party.Tweet This: In Edelson v. Cheung, the court decided that the intentional spoliation of evidence alone was not enough to compel it to impose a default ruling against Cheung because the spoliation, though intentional, did not prejudice Edelson so greatly that he would be unable to support his claims. In Edelson v. Cheung, Civil Action No. 13-5870 (JLL) (JAD), Plaintiff Leonard Edelson entered into a contract with Defendant Stephen Cheung. Under the terms of the contract, Edelson agreed to provide machinery, yarn, and consultant services, with a value in excess of $600,000, to defendants Eastchester facility in exchange for defendants promise to give Edelson a 50% interest in Eastchester at any time he specified. Edelson alleged that after entering into the agreement defendant transferred ownership of Eastchester to a third-party. According to Edelson, “Defendant created an e-mail account to hide relevant communications [from] his own lawyers. Then, when Edelson found out about the existence of this secret e-mail account, through another party’s production, Defendant deleted the evidence.” Edelson brought suit asserting breach the contract and breach of covenant of good faith and fair dealing. In the matter at hand, Edelson contended that Defendant failed to preserve electronic correspondence pertaining to the issues of the case and sought a spoliation ruling against Defendant for the same.  Plaintiff Edelson obtained an email correspondence between Defendant and the third-party that stated, “Don’t forget to use only e-mail account [...] Do not use the frontier email They read everything.” Defendant testified at deposition that he deleted the emails in question because his computer was acting “sluggish” and that he was unaware that deleting the e-mails “would lead to the misunderstanding of [his] intention[s].” Ultimately, the court found that the Defendant deliberately destroyed e-mail evidence in an attempt to conceal, suppress, and/or deprive Edelson of the information contained within it. The court imposed sanctions against Defendant under Rule 37, however, the court refused to find that the Edelson had suffered a degree of prejudice that merited the imposition of a default judgment against the Defendant. The court based its decision on two facts, (1) Edelson was able to obtain through subpoena propounded on the third-party “some of the emails” that can be presented to a jury to further support his claims; and (2) Edelson’s briefs and papers demonstrate that there is additional evidence other than the destroyed emails at issue which may be used at trial to prove the allegations against the Defendant. Though the court was not persuaded to impose a default judgment the court did decide in favor of Edelson ordering that the jury be provided an adverse inference instruction regarding the deleted emails. The lesson of this case is that the intentional spoliation of evidence alone is not enough to compel the court to impose a default ruling against the offending party. Rather the spoliation must prejudice the affected party so greatly that they would be unable to support their claims. Jason Castle is a 2018 Juris Doctor candidate at Seton Hall University School of Law, where he has focused his studies in the area of conflict management representing Pro Se litigants at mediation and settlement conferences in the Southern District of New York (SDNY) and District of New Jersey (DNJ) respectively. Jason serves as President of the Student Bar Association and co-founded the #LearnKnowDifferent initiative to raise awareness and lower stigma around common learning disabilities prevalent in post-secondary institutions. Upon graduating Jason intends to work in the New Jersey Judiciary as a law clerk where he has accepted a one-year appointment. Following his judicial clerkship, Jason will work for theMorristown based law firm, McElroy Deutsche Mulvaney & Carpenter. Prior to attending law school, Jason served in the United States Marine Corps where he deployed as infantry Marine in support of Operations Iraqi Freedom and Enduring Freedom. Upon completion of his military service, Jason was employed by Apple, Inc. in a business capacity as a sales executive managing Apples strategic financial services customer relationships. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Under What Circumstances Will a Judge Enter Default Judgment as a Sanction for Spoliation of Evidence?

Author: Caiti DerenzeCase Citation: Organik Kimya, et al. v. ITC, 843 F.3d 994 (U.S. App. 2017)Employee/Personnel/Employer Implicated: EmployeeseLesson Learned: Parties facing litigation need to give employees a litigation hold notice.Tweet this: Destroying evidence can lead to a default judgment. What does destroying a hard drive with a hammer, leaving a laptop in a rest-stop bathroom, and overwriting a computer’s hard drive all have in common? The answer is that these actions can lead to a default judgment as a sanction for spoliation of evidence. In May 2013, Dow Chemical Plant filed a complaint that alleged Organik Kimya (“Petitioner”) infringed on Dow patents and misappropriated trade secrets. During the proceedings, Petitioner was obligated under a discovery order issued by an Administrative Law Judge (“ALJ”) to present an employee’s laptop to Dow’s forensic investigator. Instead, Petitioner overwrote the laptop’s files, backdated the computer’s internal clock to hide the fact that the overwriting took place after the discovery order was issued, and used a program to delete large portions of the laptop’s C and D drives. Petitioner’s spoliation did not stop there. After Dow served Petitioner with its complaint, a former Dow employee who gained employment with Petitioner also destroyed evidence. Petitioner’s employee “removed the hard drive from his personal computer and smashed it with a hammer and threw it in the garbage” and destroyed a bag filled with zip drives to ensure that information could not be recovered. O The last two occurrences of spoliation took place one day after the ALJ ordered one of Petitioner’s employee’s files to be preserved. First, someone logged into that employee’s computer and deleted 2,742 files and folders. Then, the same employee brought his computer bag, which contained his computer and storage devices, “into a bathroom of a highway rest stop, but ‘accidentally’ left [it] there.” The ALJ found that Petitioner never gave its employees “a litigation hold notice, instead leaving it up to each individual employee whether to save or delete electronic files.” It further concluded that Petitioner acted in bad faith when overwriting the first employee’s laptop, the spoliated evidence contained on the laptop was relevant to Dow’s allegation of trade secret misappropriation and that its destruction was prejudicial to Dow’s ability to prosecute its case. As for the second employee who destroyed his hard drive with a hammer, the ALJ did not find sufficient evidence to prove that Petitioner was destroying data deliberately. Finally, for the third employee, the ALJ found that the deletion of the 2,742 files and folders “evinces an attempt to cover-up wrong doing.”  The ALJ was also shocked that this cover-up took place after the ALJ put Petitioner on notice of the massive spoliation of evidence on the first employee’s laptop. Ultimately, Dow moved for sanctions, including a default judgment, against Petitioner. The ALJ granted Dow’s motion because Petitioner “deliberately destroyed evidence, and then actively attempted to deceive [the ALJ] as to what it had done.” Additionally, the ALJ concluded that it could give a lesser sanction to Petitioner because it would not deter other parties destruction of evidence. On review, the Commission upheld ALJ’s finding of default, and it issued a 25-year limited exclusion order and cease and desist order. Petitioner argued that the ALJ failed to consider its proposed lesser sanctions. However, the Commission opined that the default judgment held Petitioner accountable and was the best method of deterrence. Then, the United States Court of Appeals for the Federal Circuit heard the case. Petitioner argued that the Commission erred under Micron Technology v. Rambus, 645 F.3d 1311 (Fed. Cir. 2011), asserting Dow was minimally prejudiced by the spoliation, and the Commission did not sufficiently address the proposed lesser sanctions. However, the Court held that Micron did not apply; instead, it evaluated the sanctions under Commission Rule 210.33(b) and Federal Rule 37(b). The Court noted that the two rules were “coextensive” and under the rules, a court can issue certain types of sanctions at its own discretion. Therefore, the Commission has the discretion to impose a default judgment sanction when a party disobeys a discovery order if that party’s conduct warrants that type of sanction. Furthermore, Commission’s and ALJ’s choice of sanctions is reviewable by the Court of Appeals. The Court can set aside a sanction decision “only if it is legally erroneous, arbitrary and capricious, or constitutes an abuse of discretion.” 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 Broad is Too Broad?

Author: Aislinn KochCase Citation: Rutledge-Plummer v. SCO Family of Servs., No. 15-CV-2468 (MKB) (SMG), 2017 WL 570765 (E.D. N.Y. Feb. 13, 2017)Employee/Personnel/Employer implicated: Cecelia Rutledge-Plummer (Former employee of SCO Family of Services), SCO Family of Services (Company)eLesson Learned: Parties need to be concise and articulate when specifying which documents they are requesting that are truly relevant to their case in order to adhere to Fed. R. Civ. P. 26(b)(1). Specificity is the key to a proper electronic discovery request in order to comply with Fed. R. Civ. P. 26(b)(1). The Plaintiff in Rutledge-Plummer v. SCO Family of Servs. was about as non–specific as they come when she requested documents related to her discrimination lawsuit.  The scope of Fed. R. Civ. P. 26(b)(1) is limited to “any nonprivledged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Plaintiff, while pro se, decided that asking for every single email sent and received between eight different individuals from August 1, 2013 to the day this decision was made, February 13, 2017, was a perfectly legitimate request. Absolutely not. This would include more than likely thousands and thousands of emails, most of which might not have a single thing to do with her discrimination case.  This is way too broad. The court was not about to allow this Plaintiff to burden the Defendant with this request for an absurd number of documents. Plaintiff’s request was denied on the grounds that it was overly burdensome. Even during oral argument when the Plaintiff attempted to somewhat limit the scope to just emails that had to do with her and to put the end date of August 4, 2014, the court found these extra limitations still to not be enough. Clearly, there is a high burden on the specificity requirement of Fed. R. Civ. P. 26(b)(1). Defendant actually did search for some emails, but they limited their email search to “(i) the decision to eliminate plaintiff’s position, (ii) plaintiff’s allegation that her responsibilities changed even before the decision to eliminate her position was made, and (iii) plaintiff’s requests for medical leave and her alleged disability.” Because of the tailoring that the Defendant did to the search, the court said that denying Plaintiff’s motion to compel will not cause her to end up with nothing. However, this massive blunder by the Plaintiff to over request documents caused the court to allow the Defendant to decide which documents were relevant. That’s probably the exact opposite of what the Plaintiff was hoping for. Litigators beware, you better know what documents you really want because if you go too far, you might just end up with something else entirely. Limiting the scope of your electronic discovery requests is imperative to the outcome of your case. This Plaintiff and her counsel, whom did not even bother to check for what she asked for while she was pro se until the deadline for discovery was almost up, ended up with emails that the Defendant had control over. Plaintiff even botched her other electronic discovery requests for the same reason that they were not specifically tailored to relevant information to her case. Broader is not better when it comes to electronic discovery. You should know precisely what documents you are looking for when making a discovery demand. Otherwise, your request could be denied and you’ll end up with nothing useful to your case. The Plaintiff in Rutledge-Plummer v. SCO Family of Servs. learned this the hard way. Aislinn Koch is a 2014 magna cum laude graduate of Elon University located in North Carolina where she earned her B.F.A. in Dance, Performance and Choreography and her B.A. in Strategic Communications.  She will receive her J.D. from Seton Hall University School of Law in May of 2018. After graduation, Aislinn will clerk for a judge in the Superior Court of New Jersey, Family Division, in Bergen County. Want to read more articles like this?  Sign up for our post notification newsletter, here.

How Can a Judge Infer Intentional Deprivation of Electronic Information and Thus Impose Severe Spoliation Sanctions?

Author: Tracy F. BufferCase Citation: Moody v. CSX Transp., Inc., No. 07-CV-6398P, 2017 U.S. Dist. LEXIS 154449 (W.D.N.Y. Sep. 21, 2017).Employee/Personnel/Employer implicated: Railway CompanyeLesson Learned: In order to prevent the imposition of harsh sanctions, parties should, as soon as they are aware that litigation is impending, ensure that any data that is relevant is readable and also stored on multiple interfaces. Waiting more time to attempt to access data could allow the court to infer that any deprivation was intentional.Tweet This: A railway company did not cover its tracks and was subject to spoliation sanctions based on actions relating to black box recordings. In this dispute, Plaintiff sued a railway company (“Defendant”) for personal injuries resulting from when she was hit by a train and dragged for twenty feet in 2006. Her injuries included an above-the-knee amputation of her left leg and the loss of toes on her right leg. Among other things, Plaintiff moved for spoliation sanctions based on Defendant’s inability to produce information from the train’s event recorder, which is typically called a “black box”.  The event recorder records all movements from the train including acceleration, speed, braking, and the use of the horn or bell. Normally, the data is transferred from the recorder to a central data vault. When Plaintiff served discovery demands in June of 2009, she asked for, among other information, the printouts from the event recorder of the train that hit her. Defendant responded by stating that the data from the event recorder was downloaded but not in a readable format. Plaintiff then served a supplemental notice for Defendant to produce the download as well as the information and software necessary to interpret the data. Defendant did produce the unreadable download along with a letter stating that an engineer only downloaded two of the three files that were necessary to read the information. When this was discovered, Defendant stated, the company asked the engineer to check his laptop for the file. However, the letter explained, the laptop had crashed and had been recycled or destroyed. Plaintiff asserted that Defendant had spoliated the data from the event recorder and requested that the court strike Defendant’s answer or provide an adverse inference instruction to the jury. Plaintiff claimed that Defendant had a duty to preserve the event recorder data in the central data vault and on the laptop as Defendant was aware that it contained information that was central to the dispute. She also claimed that Defendant did not take reasonable steps to ensure the data was preserved and that she was prejudiced by the destruction of the data because it would have resolved the issue of whether the train’s horn sounded before it started moving. Defendant argued that it took reasonable steps to preserve the data, that Plaintiff was not prejudiced by the loss of the data, and that it did not act with any culpability. Defendant claimed it acted reasonably when it sent the engineer to receive the data right after the accident and then sent it to the data vault. It claimed that any loss of data was due to inadvertent human error. Defendant claimed that even if the court were to determine that some sanction is appropriate, an adverse inference instruction is not because its errors were a result of simple negligence and not bad faith, intentional conduct. The court ultimately imposed an adverse inference instruction to the jury which, under Rule 37(e)(2) of the Federal Rules of Civil Procedure, allows the jury to infer that the lost information “was in fact unfavorable to the party that lost it.” The court noted that based on Rule 37, Defendant did have a duty to preserve the data from the event recorder as it was relevant information to an impending lawsuit. The court also found that Defendant did not take reasonable steps to preserve the data. Relating to this finding, the court was not convinced that Defendant had not attempted to access the data from 2006 (the time of the incident) to 2010 (the time of the discovery request) given that it would establish relevant and material facts. The court also found Defendant’s explanation about the laptop with the information incredulous and its actions in destroying or recycling the laptop unreasonable. The court found, of course, the data was not reproducible as the information from the event recorder could not be replicated by any other means. Also, the court found that there was prejudice to Plaintiff as it was plausible that the data from the recorder would have supported Plaintiff’s position. It was not necessary that she prove that the recording data would have been favorable to her position. The most important part of the opinion focused on whether or not Defendant engaged in intentional deprivation, which would warrant more severe sanctions against it. The court did, in fact, find that Defendant acted with intent to deprive Plaintiff of the data from the event recorder. The court inferred this intention from the fact that Defendant knew it had a duty to preserve the data and allowed the original data on the event recorder to be overwritten and destroyed on the laptop. In addition, Defendant’s failure, from 2006-2010 to ensure that the data was properly preserved allowed for the inference of intentional deprivation. As the court found that Defendant intentionally deprived Plaintiff of the data from the event recorder, it imposed the severe sanction of an adverse inference instruction, therefore allowing the jury to infer that the data on the event recorder was unfavorable to defendant. The issues here related to the fact that the data that was present was unreadable as well as the destruction of the laptop. In order to prevent similar issued from arising in the future, parties should, as soon as they are aware that litigation is impending, ensure that any data that is relevant is readable and also stored on multiple interfaces. Waiting more time to attempt to access data could allow the court to infer that any deprivation was intentional. Once this intention is found, harsh sanctions can be imposed under Rule 37 which could be extremely detrimental to that party’s case. Learn from this railway company’s mistake and cover your “tracks”. 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.

What Happens When An Entity’s Record Retention Policy Threatens Spoliation? Policy Suspension and Evidence Preservation

Author: Samantha MonteleoneCase Citation: Houston v. Coveny, No. 14-cv-6609, 2017 U.S. Dist. (W.D.N.Y. Mar. 13, 2017)Employee/Personnel/Employer implicated: New York Department of Corrections and Community SupervisioneLesson Learned: When a retention policy threatens to destroy evidence, courts will suspend the policy and preserve all evidence reasonably related to the pending litigation, for the duration of the case.Tweet This: “Court Orders ‘No Locking Those Records Behind Bars’ in Suit Against NY State Department of Corrections Employees” The United States District Court for the Western District of New York recently ordered the New York State Department of Corrections and Community Supervision (“DOCCS”) to preserve a series of videos and audio recordings related to claims against over 40 of its employees, suspending the DOCCS’ routine policy of retaining recordings for only one year.  Pro se plaintiff Tyrone Houston is an inmate at the Five Points Correctional Facility, in the custody of the DOCCS.  Mr. Houston brought a suit alleging that the defendants, some 40 prison officials, retaliated against him for filing a prior lawsuit, in violation of his constitutional rights.  In a motion to preserve evidence, Mr. Houston asked that the Court order the defendants to preserve eight videos and audio recordings, ranging from September 8, 2015 to December 31, 2015, of his tier and grievance hearings. These video and audio recordings were related to claims included in Mr. Houston’s proposed amended complaint.  In his motion, Mr. Houston attached letters from the DOCCS stating that the recordings (which Mr. Houston requested via the Freedom of Information Law) will be retained for one year, in accordance with the DOCCS’ retention policy. The Court granted Mr. Houston’s motion to preserve evidence, reasoning that the Court may grant a preservation order if “a party can demonstrate that the evidence is in some danger of being destroyed absent court intervention.”  Pointing to Mr. Houston’s exhibits detailing the DOCCS’ retention policy, the Court found it appropriate to ensure that the recordings are preserved throughout the pendency of the case.  The Court noted that although it is not clear that Mr. Houston’s amended complaint will become the operative pleading, the recordings at issue are the subject of pending litigation and thus should be preserved. Accordingly, the Court suspended the DOCCS’ “routine document and retention/detention policy” and ordered the DOCCS to preserve all evidence reasonably related to Mr. Houston’s existing and proposed claims.  One cannot fault the DOCCS for maintaining a routine policy of retaining recordings, even if for only one year.  Certainly, most entities maintain record retention policies these days.  However, when a retention policy threatens spoliation, courts will suspend the policy and preserve all evidence reasonably related to the pending litigation, for the duration of the case. Houston v. Coveny, No. 14-CV-6609-FPG, 2015 U.S. Dist. (W.D.N.Y. June 16, 2015)Houston v. Covey, No. 14-CV-6609-FPG, 2017 U.S. Dist. LEXIS 139740 (W.D.N.Y. Aug. 29, 2017) 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.

When might you be required to preserve certain ESI beyond your routine record retention policy? When that ESI is the subject of pending litigation and a court determines that ESI is in danger of being destroyed pursuant to your policy.

Author: Sarah E. Hsu WilburCase Citation: Houston v. Coveny, No. 14-cv-6609, 2017 WL 972124 (W.D.N.Y. Mar. 3, 2017)Employee/Personnel/Employer implicated: Department of Corrections and Community Supervision (DOCCS)eLesson Learned: A court can order an entity to suspend its routine record retention policy and preserve certain electronically stored information (ESI) related to pending litigation if it determines the ESI is in danger of being destroyed due to that policy.Tweet this: A one-year routine record retention policy could be enough for a court to order certain data under that policy be preserved. Courts generally do not have to order parties to a lawsuit to preserve evidence because Federal Rule of Civil Procedure 37 states that parties must take reasonable steps to preserve material related to litigation. Micolo v. Fuller, No. 15-cv-6374, 2016 WL 158591, at *1 (W.D.N.Y. Jan. 13, 2016). But courts do sometimes issue such an order if a party demonstrates that certain evidence related to pending litigation is in danger of being destroyed without court intervention. Id. That is exactly what happened in this case. The plaintiff, in this case, a pro se prisoner, filed a motion to compel the Defendants, Department of Corrections and Community Supervision (DOCCS) officials, to preserve evidence—specifically video and audio recordings from eight specified dates of Plaintiff’s tier and grievance hearings, which recordings related to claims Plaintiff included in his proposed amended complaint. Plaintiff requested these recordings through a Freedom of Information Law request. In support of his motion, Plaintiff attached letters from DOCCS stating that the recordings he requested would only be retained for one year. Given DOCCS’s one-year routine record retention policy, the court found that the requested recordings were in danger of being destroyed (presumably at the end of that one-year period or at least before the end of the litigation) and thus granted Plaintiff’s motion to preserve the recordings. The court stated an order was “appropriate to ensure the recordings would be preserved throughout the pendency of this case.” Additionally, the court noted that even though a judge had not yet ruled on whether Plaintiff’s proposed amended complaint was sufficient, the court stated the recordings should nonetheless be preserved because they were the subject of the pending litigation. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). The court accordingly directed DOCCS to suspend “its routine document and retention/destruction policy” and stated that DOCCS was on notice going forward that it must preserve “all evidence reasonably related to plaintiff’s existing and proposed claims.” Luellen v. Hodge, No. 11-cv-6114P, 2014 WL 1315317, at *5 (W.D.N.Y. Mar. 28, 2014) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)). 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.

When is a Lost Cell Phone Spoliation? When it was Requested to be Preserved on the Record, and it was used by the Party Claiming it Lost it During the Time it was Lost.

Author: Frank McLaughlinCase Citation: Brown v. Certain Underwriters at Lloyds, London, et al., No. 16-cv02737 (E.D. Pa. June 12, 2017).Employee/Personnel/Employer implicated: Insurance Beneficiary as Plaintiff, Accomplice, InsurereLesson Learned: If you are asked on the record to preserve evidence for discovery, you should not fraudulently claim it is lost or destroy it intentionally when the other party seeks to review said evidence. If you do claim evidence is lost, you must have a reasonable reason as to why it is lost, and there should be no evidence supporting that it is actually not lost and in your possession at the time you claimed it was lost. Imagine if your cell phone could convict you of a crime. Weird to think of; yes. But think of the implications your cell phone straps you with. Cell phones have become more than just a device for placing calls and receiving the occasional text message. Now they have evolved, becoming a crucial tool for tasks like GPS mapping, emails, making NFC payments, and more. With these new capabilities, the areas of law that cell phones become a major part of are virtually limitless. Furthermore, because your cell phone is highly complex technology, nearly every button press or Face ID unlock is recorded somewhere, meaning it can be used as evidence! As Mr. Brown (the plaintiff here) learned, your cell phone, just like any other evidence, should not be tampered with to hinder the opposing party’s case. In Brown v. Certain Underwriters at Lloyds, London, et al. (hereinafter, “Lloyds”), Mr. Brown claimed Lloyds did not compensate him as his insurer, when Mr. Brown’s property burned down. Lloyds had conducted a standard preliminary investigation to see what caused the fire and to access damages. At this preliminary investigation, Lloyds took the testimony of Mr. Brown under oath and requested, on the record, that he preserve any evidence existing on his cell phone for evidence if future discovery were to occur. When the time came for Mr. Brown to produce his cell phone, Mr. Brown simply told Lloyds and the court that it was lost. Nothing more . . . nothing less. Lloyds filed a counterclaim against Mr. Brown claiming spoliation of evidence. Spoliation of evidence exists if (1) the evidence was in the party’s control, (2) the evidence is relevant to the claims or defenses in the case, (3) there has been actual suppression or withholding of said evidence, and (4) the duty to preserve the evidence was reasonably foreseeable. The main issue here was the third element, as the court claimed Mr. Brown clearly knew there was a duty to preserve the evidence based on Lloyd’s prior request. Here is where things get funny. Mr. Brown claimed he lost his cell phone, but he never notified Lloyds that the phone was lost until it was requested by Lloyds, and Ms. Judy Cooks testified against Mr. Brown, providing sufficient evidence, that Mr. Brown sent her text messages during the time Mr. Brown claimed his phone was lost. Not only that, but the messages suggested that Mr. Brown burned down his own property! Ms. Cooks also testified that she never rented space in Mr. Brown’s property, which was required by Lloyds for the fire coverage. This is fraudulent and textbook spoliation. Lloyds wanted the cell phone to trace Mr. Brown’s location and see other contact information related to Mr. Brown’s whereabouts and plans on the night his property burned down. Because Mr. Brown intentionally failed to produce his cell phone for discovery and did so in bad faith, as determined through other evidence proffered by Lloyds, the court ruled Mr. Brown should receive serious sanctions. Mr. Brown’s case was not dismissed, but the jury was instructed to view the lost cell phone as an inference that it had bad, bad stuff on it against Mr. Brown. How could Mr. Brown have avoided this situation? Well, he should have not burned down his own property! That would have been the best strategy most likely. Another solution, though teetering on the dark side with this one, would have been for Mr. Brown to notify Lloyds immediately when he lost his phone (or destroyed it) and for Mr. Brown to have provided some reasonable story of how he lost his phone (e.g. went kayaking in the ocean and it fell into the deep blue sea). He could have also just preserved the cell phone as evidence, which could have potentially saved Mr. Brown from having to pay Lloyds’s costs associated with seeking to have Mr. Brown produce it. But, yeah, Mr. Brown should just have not burned down his own property and, having done so, he should not have filed a claim in court for Lloyds to pay him for his self-inflicted misfortune. That is really the only answer in this one folks. 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.

How Do You Get Away Without Spoliation Sanctions? Oops, I lost my phone!

Author: Preeya SoniaCase Citation: Charles v. City of New York, No. 12-CV-6180 (SLT)(SMG), 2017 WL 530460 (E.D.N.Y., Feb. 8, 2017).Employee/Personnel/Employer implicated: Plaintiff, resident of Brooklyn, NYeLesson Learned: Plaintiff had the obligation to preserve her video of the police conduct. However, because her phone was lost negligently, rather than with gross negligence, Defendants cannot infer that the lost video would have been favorable. Thus, Defendants would need to establish at trial that the lost video would have been favorable to them.Tweet This: Negligent Plaintiff loses iPhone video of cops – too bad for the cops. In June 2012 Plaintiff was taking a walk in her neighborhood in Brooklyn, NY when she spotted two police officers questioning a group of neighborhood teens. She overheard one of the teens proclaiming that he had done nothing wrong. Taking matters into her own hands, Plaintiff began to approach and asked the officers why they had stopped the teens. Plaintiff, as a tax paying citizen living on the block, believed she had a right to know about a “process on the block.” Thus, she began to record the incident with the cops on her iPhone. As she recorded, the officers repeatedly asked her to step back. She did. Upon the third request to Plaintiff to step back, she refused. One of the officers then pushed her back. The cops called for backup and arrested Plaintiff. Plaintiff was held in a cell for a period anywhere between 33 minutes and 80 minutes before being released. Thereafter, she received a summons for disorderly conduct. Plaintiff and Defendants disagree about much of the facts of this incident. Plaintiff claims she was an arms-length away from the officers as she recorded them. The cops claim she was right in their faces as she recorded. On one account Plaintiff was violently shoved, and on the other, the cop accidentally made contact with Plaintiff due to her close proximity to the cops while recording. Each party’s witnesses have differing accounts, as well. Plaintiff’s iPhone video would have been a great help in determining the actual nature of the confrontation. Unfortunately, the phone went missing mere days after Plaintiff’s arrest.  Plaintiff claims that she viewed the video after her arrest to confirm that it had not been compromised. She also viewed the video at work in front of a coworker. Then, two days after her arrest, Plaintiff attended a gala. She brought a small purse with her and unfortunately, her phone would not fit inside and thus, she had to hold it all night. As a result, Plaintiff lost her phone and never downloaded the video. Defendants then moved for Spoliation Sanctions. Spoliation is the “destruction or significant alteration of evidence” or the “failure to preserve property” for another party to use as evidence in pending or reasonably foreseeable litigation. Defendants sought dismissal of the lawsuit, or alternatively, an adverse inference instruction. Thus, Defendants must establish: 1) that Plaintiff had an obligation to preserve the video at the time it was destroyed; 2) that the video was destroyed with a “culpable state of mind;” and 3) that the destroyed video was “relevant” to Defendant’s claim, such that a reasonable trier of fact could find that it supports the defense. Defendants proved the first two elements based on the nature of the video and Plaintiff’s negligence in losing the phone. Plaintiff was negligent because she chose to carry a small purse in which she could not fit her phone, which contained a video with important evidence to this case. However, because this was mere negligence and not gross negligence, the court cannot infer that the video would have been favorable to Defendants. Thus, the court denied Defendant’s motion for spoliation sanctions without prejudice if evidence is introduced at trial that the iPhone video is likely favorable to Defendants. This entire case was centered around Plaintiff’s iPhone video. Thus, she was quite aware that the video was very important evidence and she had a duty to preserve it. Plaintiff was negligent in carrying around her phone and putting it down during the gala, where there were many people around and it would be easy for her to lose the phone. Plaintiff should have kept the phone secure. Additionally, Plaintiff should have downloaded the video immediately upon her release. However, luckily for her, because she was merely negligent, Defendants could not establish that the video was favorable to them. Therefore, Plaintiff was not susceptible to spoliation sanctions. However, if Defendants somehow found such evidence and introduced it at trial, Plaintiff would be out of luck. Preeya Sonia is a third-year law student at Seton Hall University School of Law and resides in Newark, NJ.

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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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