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Can deleting information be considered spoliation? Not easily.

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

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

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

When is it permissible to gain access to government officials emails in a case relating to violations of constitutional rights?

Author: Elliot M. HirschCase Citation: Mann v. City of ChicagoEmployee/Personnel/Employer Implicated: Certain Custodians from the Mayor's OfficeeLesson Learned: If there are emails or records that can be used to support a claim by a party, then those emails/records will be subject to discovery and can be compelled to be pursued.Tweet This: Motions to Compel discovery email search on people who work in an office that has a connection to the case isn’t that difficult, just ask the City of Chicago. The City of Chicago’s police force has allegedly engaged in some shady practices at non-public locations in Chicago that have come to the forefront in many cases appearing in United States District Court. There is a place called Hopman square in Chicago. The police officers of the city of Chicago have allegedly taken many people there and subjected them to unconstitutional searches and arrests. These are extremely serious allegations. The issue in front of the court here was not about damages that Chicago should pay these citizens. The issue here was regarding emails that would show that the police force had policies that were not in accordance with the law and prove that they engaged in these illegal practices. The main case that the complainants relied upon in their argument was Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). The city of Chicago had about 9 custodians from the Mayor’s office that the complainants were seeking to compel to release emails from their servers to reveal the illegal practices that were prevalent amongst the police force in the City of Chicago. The defendants agreed to release 2 custodians’ emails to the court but did not want to release the others. They cited undue burden and high costs as their main argument in order to prevail. But the court was not impressed and didn’t agree to their arguments. The rule at play here was the Federal Rule of Civil Procedure 26 which discusses discovery and has a specific mention about electronically stored information. But before discovery can be commenced the law is that the information being sought must be considered “relevant”. Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711, 721 (N.D. Ill. 2014). The court concluded here that the emails of the custodians could certainly contain information that would buttress the complainant’s allegations and were not persuaded by the argument of the City of Chicago. It is an important ruling pertaining to eDiscovery that the court was very generous in allowing the search of more person’s email servers. But the court did set out a sort of warning or rule that should pertain to future cases in similar situations. The court did not allow every single custodian email server to be searched. They set out a precondition of the sort that said that those custodians that are of the short tenure of the staff person or the time during which the person holding the position would not be searchable. This was a kind of solution to the argument made by the City that stated claims such as high cost and undue burden of discovery procedures. It should be noted that the court mentioned that because the City did not provide a number or even an estimate of the amount of money that the burden would cost, their argument was shut down. If they did provide such data, then it appears the court might have made a different decision. Elliot M. Hirsch is a third-year law student at Seton Hall Law school. Before attending law school, Mr. Hirsch was a semi-professional tennis player training with some of the best tennis players in the world. Additionally, Mr. Hirsch was a Math teacher and tutor for students in middle school and high school. Mr. Hirsch has taught over 3500 students ranging from Honors programs to students with severe learning disabilities. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Discretion May Be Good for Judges, But It’s Not For The Defendants With Data.

Author: Ashley E. MorganCase Citation: Nunes v. Rushton, No. 2:14-cv-00627-JNP-DBP (D. Utah May 14, 2018).Employee/Personnel/Employer Implicated: The defendant in a defamation caseeLesson Learned: The producing party must preserve all relevant information existing at the time the duty to preserve attaches and any information that is created after the duty attaches, even if the information is on a backup system.Tweet This: Deleting the problem will not make it go away. Instead, it will make the problem even bigger and more expensive. Most lawyers know that mundane actions taken by clients can become serious headaches when done in the litigation context. That is exactly what happened in the case of Nunes v. Rushton, where the plaintiff made a motion to sanction the defendant for spoliation of evidence following the defendant’s deletion of a Google account. Specifically, the plaintiff had brought suit on August 28, 2014, alleging defamation stemming from the defendant’s use of a number of “sock puppet” accounts to post positive reviews of her own books and negative reviews of the plaintiff’s books. During the ensuing litigation, the plaintiff made a discovery request for documents stored on the defendant’s various Google accounts. On August 12, 2015, while this discovery request was pending, the defendant deleted one of her Google sock puppet accounts. The defendant then deleted all of the remaining accounts on March 21, 2016. There exists a duty to preserve whereby the producing party must preserve all relevant information existing at the time the duty to preserve attaches and any information that is created after the duty attaches, even if the information is on a backup system. The Court reasoned, then, that spoliation sanctions are proper only if a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and the adverse party was prejudiced by the destruction of the evidence. Sanctions that ask for an adverse inference, whereby the jury would be instructed that the destroyed evidence would have been unfavorable, must meet the additional requirement that such actions were done in bad faith. Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case. Here, spoliation sanctions were not appropriate for the accounts deleted on March 21, 2016, as the plaintiff had not shown that she suffered any prejudice as no attempt was made to demonstrate that the posts and comments on these accounts were irretrievably lost. On the other hand, the defendant’s deletion of her Google accounts on August 12, 2015, was both done after the filing of the plaintiff’s lawsuit and prejudiced The plaintiff because all the information stored on this account was irretrievably lost. The only question that remains, then, is whether the defendant deleted the account in bad faith. The defendant offered no explanation for the August 12, 2015 deletion of the Google account. Given that litigation had been pending for almost a year, that the defendant was represented by counsel, and that the plaintiff had requested the production of documents associated with this Google account, the court could only infer that the deletion was done in bad faith. As a result of the defendant’s actions, the jury was instructed to presume that the documents and emails stored on the defendant’s deleted Google account would have been unfavorable to her. It’s safe to say that all of this could have been avoided if the defendant had just used their accounts in the same way they would have if there wasn’t pending litigation. Clients can become unnerved by being thrown into the litigation arena and will sometimes take actions they wouldn’t otherwise as a means of self-preservation. In those instances, the best thing to do is maintain the status quo. Sometimes, inaction is the best advice a lawyer can give to their client. Ashley was a 2016 magna cum laude graduate of Seton Hall University located in South Orange, New Jersey where she earned her B.A. in Political Science, History, and Philosophy. She will receive her J.D. from Seton Hall University School of Law in 2019. After graduation, Ashley will serve as a clerk to a trial judge in the Superior Court of New Jersey in the Bergen vicinage. Want to read more articles like this?  Sign up for our post notification newsletter, here.

How Much Redaction is Too Much Redaction? Blanket Redactions Without Legitimate Justification.

Author: Maria A. GrajalesCase Citation: IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)Employee/Personnel/Employer Implicated: Counsel (unclear as to whether it is In-House Counsel and/or Outside Counsel) eLesson Learned: When a party seeks to redact portions of discoverable documents, he or she must demonstrate that the subject documents are privileged and or that these documents are protected by the work-product doctrine.Tweet This: No, no, says the court to bogus practice of redactions. A tool once meant to protect the privacy and sensitive information of parties has now been abused to impede the disclosure of discoverable information. The practice of redacting serves a critical role in the discovery stage of litigation, but its potential for abuse is one we cannot lose sight of. Attorneys must be careful to redact only information that is privileged or subject to work-product protections. In IDC Fin. Pub., Inc. v. Bonddesk Grp., plaintiffs brought a motion to compel against defendants after defendants redacted 600 of over 6,000 documents produced in discovery. Plaintiffs sought production of the unredacted version of these documents. Defendants argued that the information redacted is not relevant and was therefore permissibly redacted. Defendant further claimed that plaintiff is not entitled to peruse through any and all documents dealing with the contract at issue. While it is certainly true that parties to a litigation do not have free reign to obtain and review any and all documents, the Federal Rules of Civil Procedure make clear that parties may obtain documents that are both nonprivileged and relevant to a party’s claim. This means that even information that is not admissible as evidence in court falls within the scope of discovery. However, this does not mean that a party cannot object to a document request or that a party is suddenly barred from redacting pertinent information. A party seeking to redact certain information simply needs to assert that the information redacted is privileged or is protected by the work-product doctrine. The issue in IDC Fin. Pub., Inc. v. Bonddesk Grp. is that defendants went “beyond the sort-of ‘line item’ redactions of personal information or account numbers sanctioned by [the federal rules]. Instead, they have blocked out large chunks of information on documents . . . they admit are discoverable.” In support of these blanket redactions, defendants merely asserted that the information redacted was not relevant. This unsupported assertion provides courts with little to judge. By virtue of these redactions and lackluster explanations, judges are themselves incapable of determining whether the information has been properly redacted. In fact, redactions based on irrelevance is not supported by the federal rules of evidence. These broad blanket redactions permit parties to unilaterally determine what is discoverable and what is not, with little to no oversight from the courts or any other party. This essentially deprives a party’s adversary from the opportunity to review discoverable information. Allowing unfettered redactions would threaten the legitimacy of our justice system by incentivizing parties to redact as much as they can and hide the truth. Going forward attorneys should be cautious in what they redact. Attorneys should be careful to comply with the Federal Rules of Civil Procedure and only redact information that is either privileged or subject to the work-product doctrine. Alternatively, the party seeking to redact an extensive portion of discoverable information must show other compelling reasons for doing so. Adopting such a practice will ensure a more efficient and productive resolution of the case at stake. Maria is a third-year law student at Seton Hall University School of Law and is expected to graduate in January 2020. She earned a B.A. in Political Science from Montclair State University in 2015. Maria is interested in the area of complex litigation. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What are the Limits on Discovery Sanctions for Willful Spoliation? Sanctions Without Borders: The Consequences of Willful Spoliation

Author: Dana KutzlebCase Citation: Klipsch Group, Inc. v. ePRO E-Commerce Ltd., 16-3637-cv (2d Cir. Jan 25, 2018).Employee/Personnel/Employer Implicated: CEO, CFO, various employees in unspecified positions deemed “custodians of responsive information”eLesson Learned: Willful spoliation of discovery can result in exorbitant sanctions and cost restitution to adversaries, regardless of the ultimate award of damages.Tweet This: The Price of Willful Spoliation is an Adversary’s Costs of Investigation The process of discovery tends to be the costliest phase of litigation, save a trial itself. Generally, the costs associated with discovery come from the gathering, organizing, copying, and producing the demanded documents: a process that can take months and drain tremendous resources. While the information learned in the discovery phase is typically invaluable to the case and often bases for case resolution, the bank-breaking prices can have parties wishing they could simply pretend the information doesn’t exist. The Second Circuit recently disincentivized the cost-saving yet rule-breaking practice of spoliation, however, when it awarded a plaintiff more than 100 times the value of the litigation damages as sanctions for discovery violations. (“Continue Reading…”) In Klipsch Group, Inc. v. ePRO E-Commerce Ltd., the Second Circuit affirmed a district court’s imposition of sanctions for continuous, willful spoliation by the defendant. Plaintiff Klipsch Group, a maker of electronic sound equipment, sued Defendant ePRO alleging ePRO’s sale of counterfeit headphones that unlawfully mimicked Plaintiff’s product. That ePRO’s subsidiaries engaged in infringing sales is undisputed; the controversy arises in the number of sales of the infringing products. The Plaintiff claimed sales of approximately $5M; ePRO asserted the profit was closer to $8,000. Over the course of the litigation, as the parties entered the discovery phase, the Defendant failed to produce the documents demanded by Plaintiff through lawful means: as of the time when Plaintiff was to depose its employees, ePRO produced less than 500 pages of documents in discovery. ePRO ultimately admitted some failures and agreed to retain an e-discovery vendor, who was able to extricate an additional 40,000 documents relevant to the litigation. The documents contradicted the testimony given by the CEO in depositions, and the vendor revealed that ePRO both limited the vendor’s investigation and failed to enact a “litigation hold,” or policy of preservation, as instructed by the court. Plaintiff moved for sanctions at this time, but the court instead allowed Plaintiff to conduct its own investigation at its own cost, with the option of seeking reimbursement depending on the results. The e-investigator uncovered evidence of document deletion and manipulation, data-wiping software, and a failure to preserve the information on backup drives. Court rules impose on parties the obligation to honestly and fairly disclose all reasonably sought evidence in the course of litigation. There are lawful remedies for challenges to document demands, which include negotiating with the adversary and relief from the court, but which DO NOT include the willful destruction of information relevant to the legal case. Moreover, the Rules incorporate certain limitations on demands to rein in over-eager discovery-seekers, which includes that discovery is “proportional to the needs of the case.” This means that a case with a court-estimated valuation of $25,000 should not cost one party $2.7 MILLION DOLLARS in discovery costs. But, given ePRO’s conduct, that is exactly what happened in this case: discovery cost ePRO 108 times what paying actual damages would have. There are a few important lessons to be learned from this case: first and foremost, willful spoliation will cost you, even if the case has relatively little otherwise at stake. At numerous points, ePRO could have made better decisions: it could have been more responsive in the first instance, cooperated with its own e-discovery vendor, imposed a litigation hold at any point, and not actively manipulated and deleted relevant information. If that were the case, maybe ePRO would have had to pay $25,000 in damages, but the Defendant would not have had $2.7M in assets seized by the court before the trial even began. Also of note: the model behavior of the Plaintiff, which would continuously inform the court of the Defendant’s perceived failures and seek permission before taking corrective action. The takeaway: adhere to the rules of discovery and cooperate with the court’s directives, or the party-protecting proportionality requirement relating to discovery will not be able to shield you! Dana Kutzleb, a third-year law student at Seton Hall University School of Law, focuses her studies in criminal law. Prior to law school, she graduated from Seton Hall University with B.A. degrees in political science and classical studies. In law school, Dana participated in the Seton Hall Center for Social Justice’s Criminal Defense Clinic and will clerk for a presiding criminal judge in the Superior Court of New Jersey upon graduation. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Happens When an Effort to Expedite ESI Discovery Turns into a Quagmire of Adversarialism?

Author: Kiersten A. Fowler Case Citation: EPAC Technologies, Inc. v. HarperCollins Christian Publishing, 2018 U.S. Dist. LEXIS 53360 (M.D. Tenn., March 29, 2018). Employee/Personnel/Employer Implicated: Thomas Nelson: the owner of one of the two publishing houses that the HarperCollins Christian Publishing comprises of. eLesson Learned: Courts will show no mercy when a party displays gross inattention in the preservation of ESI, so know when the duty to preserve evidence sticks. Tweet This: Pay attention! Overlooking ESI preservation can do more damage than you think. When one party is able to produce 18,360 pages of email communications between it and an opposing party during e-discovery, but the opposing party is only “able” to produce one-tenth of that volume, it doesn’t take a world-class mathematician to realize that something isn’t quite adding up. . . That was exactly the case in EPAC Technologies, Inc. v. HarperCollins Christian Publishing, where publisher Thomas Nelson had to learn the hard way how a failure to simply preserve documents can result in severe sanctions and other punishments that will leave any party in his position at a severe disadvantage before the case even reaches trial. In EPAC Technologies, Nelson’s negligent conduct should serve as the prime example of what NOT to do. You name it, Nelson (probably) did it, or in this case, didn’t do it. After the first motion to compel and exchange of discovery documents, Nelson had not produced a vast amount of extremely relevant documents, including any single instance of a misprinted or damaged book out of the tens of thousands of books supplied by EPAC, data from Nelson’s Red Prairie Warehouse Management System that would have tracked vital information about each order Nelson placed, and emails retained in Thomas Nelson’s Google Postini email archive. Through investigation and Nelson’s delayed, reluctant admission the Court discovered that over 750,000 messages and attachments of greatest relevance to the litigation were completely purged and more than 48,000 allegedly defective EPAC books were lost, destroyed, sold, or discarded by Nelson. Clearly, this conduct was outrageous, and the loss was massive, leaving EPAC at an extreme prejudice. So how does someone like Nelson get punished? What are the consequences of such ludicrous actions? The answer may surprise you. The Court looked to the Federal Rule of Civil Procedure 37(e), as amended, for guidance, and ultimately determined sanctions regarding the electronically stored information (ESI) were inappropriate under the language of the rule, but that sanctions for the physical evidence were permissible as recommended by the Special Master. When analyzing Nelson’s lack of preservation of such documents, what the Special Master described as “willful blindness” the Court instead determined to be mere negligence, solely for lack of intent. Put simply, without intent, not preserving ESI does not rise to sanctions under Rule 37(e)(2). However, that didn’t mean Nelson got off “Scot-Free.” In its analysis, the court read Rule 37(e)(2) to allow remedial measures for the ESI and sanctions for the physical evidence. Below is a short list of the Court’s findings in regard to the three types of evidence and the corresponding curative punishments for each one: Nelson negligently disposed of the books in violation of his preservation duty resulting in a sanction that the jury would be instructed to infer that that had Nelson preserved the books would support EPSAC’s claims and be adverse to Nelson’s arguments. Nelson did not make reasonable efforts to preserve ESI such as warehouse data, leading to the curative measure of a jury instruction explaining Nelson’s failed duty to preserve and all that the books would have been able to prove. Additionally, Nelson would be precluded from offering evidence regarding any customer complaints about EPAC’s books. Nelson negligently allowed relevant emails to be purged from its Postini email archive, but the purged emails were effectively replaced and restored through additional discovery. However, since this caused a prejudicial delay for EPAC in receiving the information, EPAC could re-depose witnesses on issues related to said emails. There was one more punishment Nelson’s negligence cost him: Nelson was ordered to pay 75% of the Special Master’s fees and costs, and 50% of EPACS’s reasonable costs and attorney’s fees that incurred during the Special Master Proceedings. So how does an attorney avoid a “Nelson’s Negligence” situation. First and foremost, make sure you know when the duty to preserve evidence sticks, because according to EPAC Technologies, the Special Master and Court both determined that a preservation demand letter after the contract was terminated was an “unequivocal statement that ‘the matter might be heading to court.’” Essentially, the rule if litigation is anticipated just preserve the documents. Save yourself the sanctions, disadvantages, punishments, and costs: don’t be a Nelson. Kiersten Fowler earned a B.S. in Biochemistry and a B.A. in Classical Studies from Seton Hall University in the highly regarded Honors Program. She is currently pursuing her J.D. at Seton Hall University School of Law (Class of 2019). After law school, Kiersten will be working for Haug Partners, LLP, a mid-sized Intellectual Property firm in Manhattan. She is hoping to specialize in both patent litigation and patent procurement, but is open to exploring other areas of IP Law during her career. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Sanctions for the Nondisclosure of Relevant Text Messages

Author: JATCase Citation: Schmalz v. Village of North Riverside 13 C 8012 (N.D. Ill. 2018)Employee/Personnel/Employer Implicated: Company, Miscellaneous, Mayor, Police ChiefeLesson Learned: If your old phone contains text messages relevant to impending legal action, keep it! Failure to preserve the messages may result in sanctions, even if you innocuously discard your old phone for a new one.Tweet This: Before Getting a New Phone Consider Preserving Old Text Messages…. or Face Sanctions! So you got rid of your old phone for a new one? Did you forget about those texts on the old phone you sent, relevant to the lawsuit before you, in which you totally disparaged the adversary? Did you also forget about the litigation hold letter you received prior to the suit, putting you on notice about impending litigation? Well, guess what, now you’re stuck paying his attorneys’ fees, and the jury gets to consider the damning content in those lost texts. Consider the following case as a cautionary tale and protect yourself from the sanctions that follow a failure to make proper disclosures in the discovery of electronically stored information (ESI). In Schmalz v. Village of North Riverside 13 C 8012 (N.D. Ill. 2018), Plaintiff Schmalz motioned for sanctions against defendants for their failure to produce text messages and spoliation of evidence. Schmalz, a police sergeant, was surreptitiously passed for a lieutenant promotion despite having the qualifications, at the bidding of Defendants Hermanek and Neimann, the mayor and the chief of police respectively. At a deposition in February 2016, Neimann revealed he had at least 50 text messages with Hermanek regarding police department bureaucracy, who he did not want for lieutenant, and specifically Schmalz. During the course of the lawsuit, both defendants had procured new cellphones and as a result, the relevant text messages were lost. In the end, the court determined that the parties would be allowed to present evidence to the jury about the spoliated evidence and the relevance of the lost information. The court also awarded Schmalz with the cost of attorney’s fees for filing the motion. How and why the court reached this judgment, as with all judgments, is a matter of applying the facts to the law. Firstly, Federal Rule of Civil Procedure 37(e) lists elements that must be met in determining whether sanctions are appropriate. Naturally, all of them were present in this case. Defendants admitted that they had a duty to preserve the evidence when they received a litigation hold letter in August 2013. Yet neither defendant took any measures to preserve the texts, which was particularly troubling for Hermanek considering he himself was also a lawyer. Instead, defendants purchased new phones that year and the old phones were unsurprisingly discarded; the texts were lost as a result, unable to be recovered. Accordingly, sanctions were available. As to the extent of such sanctions, because the defendants did not discard the texts intentionally, and simply acted with gross negligence, the court deemed lesser sanctions appropriate. Second, the loss of those highly relevant messages prejudiced Schmalz, depriving him of the opportunity to know “the precise nature and frequency” of those communications. With prejudice established, the court may order measures necessary to cure the prejudice. Let’s take stock for a moment. The defendants had a duty to preserve the ESI when they received the litigation hold letter. They breached that duty when they negligently disposed of their old phones for new ones. As a result, they exposed themselves to lesser sanctions. Finally, because the loss of ESI prejudiced Schmalz, corrective measures are necessary. As stated above, those measures involved allowing the parties to present evidence to the jury about what was in the lost text messages. Moreover, the jury is allowed to use that information in making their decision. I imagine that could not have been a very pretty picture. And what of the attorney’s fees? Well as per Federal Rule of Civil Procedure 37(a), if the party whose failure to disclose the relevant ESI (i.e. the party who necessitated the motion) cannot justify the nondisclosure, then they have to pay for the moving parties attorney’s fees, as was the case here. It’s sort of a kick you while you’re down kind of sanction. In sum, if you engage in text message correspondence about a matter relevant to impending litigation, be sure to save those messages. Relevancy is a very low threshold, so if you think the content of a text may be relevant to litigation it most likely is. You would also do well to recognize when your duty to preserve begins; a litigation hold letter is certainly one such signal.   JAT is a second-year law school student at Seton Hall University School of Law pursuing an Intellectual Property Concentration along the Technology and Business Law track. Want to read more articles like this?  Sign up for our post notification newsletter, here.

More is Less?

Author: Nick Plinio Case Citation: JWD Automotive, Inc. v. DJM Advisory Group LLC, 317 F.R.D. 587 (M.D. Fla. 2016) Employee/Personnel/Employer Implicated: Insurance company, Facsimile services company, Custodian of ESIeLesson Learned: Courts have the power to modify and even craft original protective orders to ensure relevance and proportionality in ESI sought during discovery. Tweet This: Go-Fish! Courts will be quick to tailor protective orders to ensure relevance, proportionality and combat the “fishing expedition” when parties seek ESI in discovery. When it comes to ESI, the sheer volume of information “potentially” available to the parties in litigation can be misleading. Put another way, just because someone’s hard drive might contain relevant information, does not mean that the entire hard drive will be discoverable and subject to forensic investigation. In fact, courts have the authority to limit the scope of discovery and issue protective orders to ensure that only relevant and proportional information is turned over, especially when a third party is the one subpoenaed for the information. This was exactly the case in JWD Automotive, Inc. v. DJM Advisory Group LLC, 317 F.R.D. 587 (M.D. Fla. 2016). In that case, FaxVantage, a third party subpoena recipient, testified that information Plaintiffs sought could be contained on a hard drive it had previously turned over. However, FanVantage also indicated that some of the information on the hard drive was confidential and privileged. Plaintiff then asked the court to enter a protective order regarding computer forensic discovery, which it had previously negotiated with FaxVantage. Specifically, Plaintiff asked that the court develop a process by which Plaintiff's “non-lawyer computer forensic expert”, would copy the entire hard drive and "examine any Electronic Data that exists or may have been deleted” with regard to several enumerated categories of documents and information. Defendants meanwhile, issued a competing protective order questioning the relevance and proportionality of the ESI to be extracted. The Court ultimately developed a process by which to extract the data, however, it took issue with Plaintiff’s request for a number of reasons. In a footnote, the court stated that it had “serious reservations” concerning the process by which Plaintiff's expert was expected to extract ESI from the hard drive. This was mainly because (1) the expert was a non-lawyer and thus not presumptively competent to make relevance determinations and (2) neither side addressed the specifics of the forensic processes to be utilized.  The court decided to take these considerations into account, along with the Defendant’s relevance and proportionality concerns, when crafting the procedures it outlined. For example, discovery would be limited to certain fax lists provided to Plaintiff by FaxVantage. Additionally, Plaintiff’s expert was to submit all extracted and prepared information to FaxVantage counsel for review.  If within 14 days FaxVantage had any objections to the information, it would meet and confer with Plaintiff to attempt to resolve the issues. Further, Plaintiff’s expert could not disclose to any party other than FaxVantage information or data accessed on the hard drive not described by the lists. The expert would also retain the copy of the hard drive and either return or delete the data on FaxVantage’s request. E-Discovery Takeaway What’s the takeaway? With E-Discovery playing a major role in modern litigation, courts are becoming more aware of the consequences of the “fishing expedition” and are more apt to address overbroad discovery to prevent abuse. In DJM the court was quick to point out issues with Plaintiff’s proposal, stating that “[t]he potential relevance of the ESI sought is not readily apparent to the Court given the limited role that FaxVantage appears to have played in connection with this case” and that until Plaintiff could demonstrate that the information sought (i.e. the entire hard drive) was relevant, “this Court will not adopt or approve a proposed protective order that is (1) is tantamount to a fishing expedition and (2) is susceptible to abuse and misuse for purposes unrelated to this litigation.” Want to read more articles like this?  Sign up for our post notification newsletter, here.

Disclose or Your Client Could Be Legally Exposed

Author: Caiti DerenzeCase Citation: Byrne v. YP Conn. Info. Servs., LLC, 2016 Conn. Super. LEXIS 1636Employee/Personnel/Employer Implicated: EmployeeeLesson Learned: When responding to a discovery demand or when there is a technical difficulty with an electronic device that is relevant in the manner, a party is obligated to convey the operating difficulty and disclose any steps taken to preserve documents on the electronic device.Tweet This: Failure to disclose technical difficulties with electronic devices during litigation can lead clients to greater legal exposure. An opposing party must be notified when a relevant electronic device is malfunctioning. In Byrne v. YP Conn. Info. Servs., LLC, the plaintiff continuously frustrated the discovery process for two years by failing to turn over information that was contained on his electronic storage devices that was requested for in interrogatories and production of document requests. The court held a hearing on this matter and as a result, the plaintiff provided his laptop for a forensic review. During that review, it was discovered that there was little to no information on the laptop but provided evidence that the plaintiff had erased information from the laptop before turning it over for forensic review. In response, the defendant filed a motion for sanctions against the plaintiff for failure to preserve and provide electronically stored information. Plaintiff argued that the information’s deletion was accidental. He asserted that a few weeks before he was scheduled to turn over the laptop, it had difficulties operating. However, there was evidence provided by a forensic expert that 20,000 files were removed from the laptop and transferred to two external hard drives. The expert further attested that the act of transferring files required a definitive action on the part of the plaintiff. The court was not swayed by the plaintiff’s excuse, especially since he had been failing to comply with discovery demands for two years. The court offered guidance for future litigants what to do when a requested electronic storage device malfunctions. If there are issues with the device, a party should not turn it over. Instead, the discovery should include a statement of the malfunction and the documents transferred to an external device. Here, the plaintiff did not disclose any difficulties with his laptop, nor did he disclose that he had transferred his files to two external hard drives. The court saw this as another example of the plaintiff’s continual attempts to thwart discovery. However, instead of dismissing the plaintiff’s action for failure to comply with discovery, because the external hard drives were available, the court awarded the defendant attorneys fees, expert fees, and forensic analysis fees. Additionally, the court ordered that the plaintiff provide all external hard drives which were used to access, transfer or delete any file in the plaintiff’s laptop. 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.

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