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If the Hard Drives are Sold to Another, When is Info Stored on the Hard Drives Privileged? Definitely Not When Those Hard Drives Weren’t Scrubbed Before the Sale.

Author: Frank McLaughlinCase Citation: In re: New England Compounding Pharmacy, Inc., 2016 WL 6883215 (D. Mass. 2016)Employee/Personnel/Employer Implicated: Old Employee, Surgery Center, Purchaser of Defendant Surgery Center.eLesson Learned: If you sell your computer, you better scrub it of confidential information you don’t want others to see. First, a little background information for this case is needed before we get into the meat and potatoes of eDiscovery present here. A special surgery center, let’s call it SSC, sold their company and assets thereof, including their computers to a buyer, let’s call it Cumberland Medical Center or Cumberland. Those are the names used in the case; I did not make them up.  A plaintiff steering committee, let’s call it PSC, which acts as the lead for the plaintiffs in a mass tort case usually, served a subpoena on Cumberland requesting the hard drives of the computers it purchased from SSC. When SSC, the real defendant in this case, caught wind of the subpoena, they had a conniption and challenged the PSC’s ability to request their old hard drives. SSC claimed the hard drives contained privileged information, which means it is not able to be demanded unless an exception applies or the privilege is waived somehow. SSC claimed there was an attorney-client privilege, work product doctrine privilege, and a peer review privilege. The court here shut SSC down, except for the peer review privilege, which is confusing and weird and probably not that important. For the attorney-client privilege to apply, the communications need to be made pursuant to an attorney-client relationship with the intention of those communications being confidential. Makes sense, as that is the law, but also because it allows an attorney’s clients to disclose all information to them without the threat of everything they say to the attorney being used in court, which allows for better representation of those clients, in theory.  HOWEVER, this privilege can be waived if…. I don’t know… the client hands over or sells the communications to someone other than their attorney.  Furthermore, if said confidential information is provided to another by accident, there are some safeguard factors that the courts will consider.  Those are common sense factors like what precautions were taken, the time it took to rectify the error, the extent of the disclosure, and issues of fairness.  Here, when SSC sold their computers to Cumberland, they never wiped the computers of confidential information! Therefore, the information was not confidential between SSC and its attorneys because Cumberland purchased that information fair and square, un-scrubbed and dirty as hell. SSC didn’t even know what information was on the hard drives, only that it was being requested, so they had to try something! Next, SSC asserted that the hard drives had information that was covered under the work-product doctrine. This doctrine is in place to protect documents prepared in anticipation of trial by or for a party’s representative. However, the court here quickly ruled this privilege did not exist.  SSC sold their computers to Cumberland, without any intention of anticipated litigation. This privilege protects the adversary nature of litigation… YOU DON’T WANT THE ENEMY KNOWING YOUR SECRETS AND YOUR MOVES! But, SSC seems to have sold those secrets, voluntarily, if those secrets even existed, to Cumberland. Ipso facto no work-product privilege because no work-product prepared? The court here ruled that the peer review privilege did exist for certain communications, but further discovery would be needed to see which communications on the hard drives were covered. This is due to a change in Tennessee law, which I will not get into. In addition to SSC’s privilege claims, an old employee for SSC named Jane Atkinson brought her own privilege assertions. The court here ruled Jane’s information that was stored on the hard drives that Cumberland bought from SSC was definitely privileged. Reasons being: Jane had communications with her lawyers on the hard drives, but she used a password protected computer and password protected email account to access and create these communications, Jane had no role in the decision to sell SSC and its computers to Cumberland, and Jane did not know the computers would be sold without being scrubbed of privileged information. Therefore, she had a reasonable expectation of privacy and did not waiver her rights to assert her personal privileges relating to her communications. 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.

Hillary’s Hidden E-mails and Jurisdictional Discovery: Nowhere to be Found

Author: Luke LovineCase Citation: Judicial Watch, Inc. v. Tiillerson, No. 15-785 (D.D.C. Nov. 9, 2017)Employer/Personnel Implicated: State Department; National Archives and Records Administration (NARA); Rex TiillersoneLesson Learned: A court may rely on a third party, governmental agency’s assessments of searches and recovery efforts to recover lost records in determining whether or not to grant jurisdictional discovery.Tweet This: Hillary’s Hidden Emails Judicial Watch and Cause of Action (“Plaintiffs”), two non-profit organizations, believed the State Department (“Defendants”) unlawfully removed federal records from the State Department. Specifically, Plaintiffs sought to compel the infamous “Hillary Clinton e-mails” which apparently vanished from her Blackberry mobile device during her first few months in office as Secretary of State. In essence, Plaintiffs claimed that the State Department failed to retain agency records in accordance with the Federal Records Act (FRA) and now believed Rex Tillerson (current Secretary of State) had a duty to initiate action to recover the emails. This Court dismissed Plaintiffs’ claim as moot, as the National Archives and Records Administration (NARA), partnered with the FBI, recovered and turned over nearly 55,000 pages of Clinton emails. The Court of Appeals reversed, applying a mootness test with “more teeth.” The Court of Appeals remanded because it believed the Defendant and the FBI should have given a better effort in searching for emails stored on one of Hillary Clinton’s nongovernmental e-mail addresses that she used in her work capacity. However, after providing extensive recovery tactics, the Defendants renewed their Motion to Dismiss on mootness grounds once again. Under the FRA, federal agencies must preserve records containing “adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions.” The Court of Appeals in this matter made clear that a governmental agency may reasonably attempt to recover records before the Attorney General needs to take action. While the State Department concedes that federal records were unlawfully removed from the agency, it contends that its subsequent recovery efforts have “mooted the suit.” This Court believed that the case would still be moot if the Defendants “secured custody of all emails that the Attorney General could have recovered in an enforcement action.” In determining the actions before the court as moot, this Court had to consider whether the missing emails were fatally lost or whether “further digging” may recover some missing messages. With respect to the FBI’s efforts in its search, this Court held that the efforts were “consistent with what agencies are required to do when records have been destroyed or alienated.” With respect to third party service providers, it was confirmed that they stored “no data” related to the accounts and any content is unavailable.  This Court compared the Plaintiffs’ search request to looking for “specific grains of sand on a beach.” In conclusion, because this Court believed Defendants went “well beyond the mine-run search for missing federal records,” it was sufficient to rely on the agency’s assessment of such searches and render this action moot. Plaintiffs moved for jurisdictional discovery but to no avail. While courts will typically permit discovery when the record is inadequate and further discovery may be able to present new facts to bolster a party’s theory, the plaintiff must make a “detailed showing of what discovery it wishes to conduct or what results it thinks such discovery would produce.” Here, the Plaintiffs received almost entirely what they requested. This Court determined that the Government extensively documented the subpoenas related to this suit and turned over all but “two months” of missing emails. Interestingly, this Court noted that Plaintiffs’ main questions related largely to the FBI, not the State Department, which whom it actually sought discovery. In concluding its rationale, the court believed the FBI and the Defendants pursued “every imaginable avenue” to recover the missing emails. Do you agree that the emails truly couldn’t be located? Should we have to take the FBI at its word that such information was undiscoverable from third-party services, such as Blackberry and AT & T? Hmmm. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What do you mean that file was privileged?

Author: Aislinn KochCase Citation: Harleysville Ins. Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Feb. 9, 2017), vacated in part (W.D. Va. Oct. 2, 2017)Employee/Personnel/Employer Implicated: Counsel (outside), EmployeeeLesson Learned: When in doubt, check to see if you adversary really intended to send you that document labeled “privileged and confidential” and most certainly do not sent it to a third party before making the necessary inquiry.Tweet This: Just because you got information doesn’t mean you should have. ALWAYS err on the side of caution when opening/sending files labeled “privileged & confidential.” Thomas Cesario, a senior investigator for Nationwide Insurance Company who owns Harleysville, inadvertently shared “privileged and confidential” information with their adversary. Cesario was unaware of how the cloud actually worked and made an unfortunate yet honest mistake while keeping information organized about this particular case. The National Insurance Crime Bureau (NICB) asked Nationwide to send over a video of a funeral home that had been burned down. Cersario did as he was asked and sent the video via an internet file sharing service called “Box Folder.” He was able to send the video with a particular link which he believed that only he and NICB could see. This is partially correct as you would have to have the direct link to the folder in order to be able to view its contents. Cesario made a serious error, though, when he uploaded the “Claims File” to that exact Box File with the exact same link in order to share it with Harleysville’s counsel. Cersario thought that the link worked like the confidential emails he received that would automatically delete after a certain number of days. Due to some carelessness on his part for not doing the proper research on how Box File worked, this link was then shared with the Insureds’ counsel who could not see the Claims File. Even though it was marked with “privileged and confidential” Insureds’ counsel just assumed that they had waived this. This was a huge mistake. When this matter was litigated, it was ultimately decided that there was no fault on Cesario’s part. It was an inadvertent disclosure due to his lack of understanding of the technology. The court was able to forgive him for that mistake Insureds’ counsel now had access to the Claim’s File. It was Insured’s counsel that made the ultimate mistake by not informing Harleysville’s counsel that it had received this privileged and confidential information. This could have easily rectified the situation. Once Insureds’ counsel would have told Harleysville’s counsel that it had the information. Harleysville could have told them to destroy it. All information and attorney ethics would have been preserved. Unfortunately, Insureds’ counsel just assumed that confidentially had been waived so it had the right to access the information. We all know what happens when you assume now, don’t we. Insureds’ counsel was horribly incorrect in their assumption as this file as never intended for their eyes. As the court pointed out, Insureds’ counsel should have brought this disclosure to the attention of the court. The worst that could have happened would be they would be told not to look at or use the information. Instead, they went ahead and looked causing a giant issue in this litigation. The moral of the story folks is to know your technology. If you’re going to share something electronically, make sure you know how the software works and how to keep the appropriate files protected. Additionally, if you receive something electronically, know that mistakes can be made in this ever rapidly changing technological world. If something feels off, then just say something. Insureds’ should have just come forward and they would have saved themselves a whole bunch of trouble. This type of behavior is just not worth the sanctions that were rained down upon them. Aislinn Koch was 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 aggressive is too aggressive for an ESI discovery timeline?

Author: Tracy F. BufferCase Citation: Rabin v. Pricewaterhousecoopers LLP, 2017 U.S. Dist. LEXIS 125404 (N.D. Cal. Aug. 08, 2017).Employee/Personnel/Employer Implicated: Professional services firmeLesson Learned: Even if a party’s ESI discovery timetable is deemed “aggressive” by the court, the court still can allow it. Therefore, parties must be willing and able to complete a speedy and effective discovery process.Tweet This: Watch out- “Aggressive” discovery timeline may be allowed by a court In this case, out of the Northern District of California, the parties engaged in a dispute regarding ESI discovery. The parties agreed on the general ESI process, but issues arose pertaining to timing. Plaintiffs wanted discovery to begin on a rolling basis, which would have allowed them to use the discovery in their conditional certification motion. Defendant had two objections. First, it claimed that the Plaintiffs were not entitled to get discovery prior to the certification. Second, it asserted that the ESI discovery process could not be completed in the timeframe the Plaintiffs put forth. The court held that the Plaintiffs were entitled to ESI discovery in order to assist them in predation of their conditional certification motion. When coming to this the decision, the court stated it placed little weight on discovery letters between the parties that might have indicted whether they thought discovery was to begin before or after the motion because, in such a large case, positions may shift over time. In addition, the court noted that the case law the parties cited does not help determine whether the Plaintiffs are entitled to discovery before their motion. The court also points out that none of the cases the parties cited were from the Ninth Circuit, and the cases they did cite did not provide a definitive answer. As the defendant has not cited any case that forbids them from doing so, the court saw no reason to not allow the Plaintiffs to obtain and utilize any ESI discovery to support their motion for certification. As to the Defendant’s claim that it could not begin ESI discovery on a rolling basis, the court held that the Defendant had not sufficiently convinced it that the in-depth nature of the discovery required a delay. As the parties have agreed to the search terms and the development of the models should not take too long, no delay appeared to be necessary. As to the Defendants argument that validating the results of the model may take additional work, the court stated it will not elongate the discovery process based on an unsubstantiated possibility that there will be problems with the results. The court saw no reason why the process cannot be completed within the few weeks, even with time for attorney review.  This decision teaches us that even if a party’s ESI discovery timetable is deemed “aggressive” by the court, the court still can allow it. Therefore, parties must be willing and able to complete a speedy and effective discovery process. 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.

Asked and Answered?

Author: Michael Mondelli IIICase Citation: Mirmina v. Genpact LLC, 2017 U.S. Dist. LEXIS 90422 (D. Conn. June 13, 2017)Employee/Personnel/Employer Implicated: Plaintiff’s CounseleLesson Learned: Attorneys should be sure to scrupulously draft their interrogatories, while also being cognizant of local and federal standards.Tweet This: Make sure that when you ask for documents, and then ask for the Court to COMPEL their production, that you ask in a way that is not overbroad. Pending before the Court, in this case, was a Motion to Compel filed by plaintiff Scott Mirmina ("plaintiff") seeking additional responses to certain interrogatories and requests for production served by plaintiff. Defendant Genpact LLC ("defendant") filed a Motion to Strike plaintiff's reply as untimely. Plaintiff has filed a Memorandum in Opposition to defendant's motion, and defendant has filed a reply. Ultimately, the Court denied, in part, plaintiff's Motion to Compel, and denied defendant's Motion to Strike. The Court determined that the current legal standard to employ was Rule 26(b)(1) of the Federal Rules of Civil Procedure, which sets forth the scope and limitations of permissible discovery: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). "The party resisting discovery bears the burden of showing why discovery should be denied." Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009). Plaintiff's motion seeks supplemental interrogatory responses and additional production of documents in response to plaintiff's First Set of Interrogatories and Requests for Production. After the court ordered due date for supplementary responses to the interrogatories, plaintiff contended that there were still three interrogatories that remained inadequately answered. In response, defendant filed a motion to strike, asserting that the plaintiff’s motion was untimely filed. Plaintiff responded that there was good cause for the untimely filing. As previously mentioned, the defendant’s motion to strike was denied. In deciding to deny the defendant’s motion, the Court made note of the importance of complying with deadlines and that the plaintiff did not request an extension. However, the court was disinclined to grant the motion because plaintiff’s reply served to inform the Court that most the discovery disputes between the parties were settled. The Court determined that the plaintiff’s reply was informative, and the granting of the motion would not prejudice the defendant in any substantive manner. In regards to plaintiff’s motion to compel responses to interrogatories, defendant objects to the following requests: (1) please produce any and all documents referring to or regarding Plaintiff in any manner; (2) please produce all documents which relate to, concern or reflect the decision to terminate plaintiff's employment with defendant; and, (3) please produce all documents, including but not limited to emails, sent … which concern, refer to, or relate to plaintiff. Defendant argues that requests 1 and 3 on the grounds that they are overbroad, and that searching for any document that concerns, refers to, regards or relates to plaintiff in any way would be unduly burdensome. Defendant also argues that the requests fail to comport with Rule 34 of the Federal Rules of Civil Procedure, which requires that each request "describe with reasonable particularity each item or category of items to be inspected[.]" Fed. R. Civ. P. 34(b)(1)(A). Finally, defendant argues that these two requests "plainly fail the proportionality test[.] As to Request for Production 2, defendant represents that it has produced all responsive documents.  Plaintiff argues that the information sought by these three requests for production is relevant and is "anticipated to provide explicit evidence of exactly who said what, when and to whom concerning Plaintiff's work and the circumstances and events that led to his termination." The Court agrees with the defendant that Requests for Production 1 and 3 are overbroad, as originally framed. The requests are unlimited in subject matter and in time, and therefore would sweep in numerous documents that bear no relevance to the claims or defenses raised in this matter. Further, the requests do not comply with Rule 34, in that they do not "describe with reasonable particularity each item or category of items to be inspected." Fed. R. Civ. P. 34(b)(1)(A). Accordingly, the Court denied plaintiff’s motion to compel as to requests 1 and 3. However, the Court noted that this case is subject to the Initial Discovery Protocols for Employment Cases Alleging Adverse Action ("Initial Discovery Protocols") under the District of Connecticut Local Rules. The court concluded that the requirements of the Protocols sufficiently address the relevant discovery plaintiff seeks by Requests 1 and 3, but are more appropriately tailored to the claims at issue. Accordingly, to the extent that defendant did not provide the materials required by the Initial Discovery Protocols, the defendant was ordered to do so immediately. 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.

Does Good Discovery Come to Those Who Wait?

Author: Luke IovineCase Citation: In re Fluoroquinolone Prods. Liab. Litig., 2016 WL 4045414 (D. Minn. 2016)Employer/Personnel Implicated: McKesson Corp; Drug ManufacturerseLesson Learned: Discovery should be proportional to the needs of a case. In considering the importance of the discovery issues at stake, courts should balance the burden or expense of the proposed discovery against its benefit.Tweet This: Discovery Disputes Over Defendant Fact Sheets California citizens (“Plaintiffs”) alleged that they developed peripheral neuropathy after using Cipro and other generic versions of the drug. Cipro was manufactured by many drug manufacturers, especially McKesson Corporation (“Defendant”). All of the complainants allege claims of fraud, negligent misrepresentation, and fraudulent concealment, and strict liability against McKesson for distributing the drug that Plaintiffs ingested. Following a meet-and-confer process, three disputes remained with regard to the proposed pretrial order addressing the Defendant Fact Sheet (“DFS”). The disputes were discussed in July of 2016 at a status conference and now this Court is tasked with ruling on each of the three disputes between the adverse parties. The primary disagreement between the parties was whether McKesson was required to search custodial files for each DFS, or whether they could limit their searches to existing databases and central repositories. Under the Federal Rules of Civil Procedure, “discovery should be proportional to the needs of the case, considering the importance of the issues at stake in the action, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 26(b)(1). In this instance, the court determined that it would be a “significant burden” for McKesson to search custodial files for each DFS, rather than rely on the existing databases and central repositories. As part of its rationale, this Court emphasized how Plaintiffs needed to show more than “less-than-certain benefits” to require McKesson to undertake such a costly burden. However, McKesson, as well as the court, acknowledged that individual custodial-file searches may likely be warranted for a narrower group of cases at a later stage of the litigation. In addition, the court noted how “Plaintiffs [were] free to seek permission from the Court to engage in further discovery if the information available in these ‘structured databases’ turns out to be insufficient.” Secondarily, both parties disagreed over whether McKesson must provide the information requested by the DFS in “chart form” or whether they could merely provide and refer to documents containing the information. With respect to readability, a party has a duty to turn information over in a readable form. A party can also request information to be turned over in a particular form. Here, this Court determined that because the Plaintiff Fact Sheet (“PFS”) required Plaintiffs to complete “charts” rather than simply relying on attachments, Defendants must also turn over its information pertaining to DFS in “chart form.” Lastly, the parties disagreed whether McKesson was required to provide data pertaining to physician prescribing practices for antibiotics generally, rather than for the specific fluoroquinolones. This Court determined that while general prescribing practices may be relevant to this matter, the benefit for Plaintiffs is not “entirely clear” at this stage of litigation. The court held that the Defendants did not need to provide its prescribing practices beyond their particular fluoroquinolones practices. It seemed unnecessary to have Defendants provide prescribing data for all antibiotics. In conclusion, the Court ordered the parties to submit an updated version of the Pretrial Order on Defendant Fact Sheets within seven days after the conclusion of the hearing. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Is it electronic discovery if the Plaintiff already has what they are asking for?

Author: Rachel SmithCase Citation: Johnson v. Brennan, No. CV 4:16-02612, 2017 WL 5672692 (S.D. Tex. Nov. 27, 2017) Employee/Personnel/Employer Implicated: Employer and EmployeeeLesson Learned: A District Court dismissed the Plaintiff’s case for age discrimination against USPS, while also denying the request for sanctions when the documentation that was not provided by the Defendant was not in fact destroyed, and the Plaintiff was already in possession of those documents. In this case, a case originally about employment discrimination, the District Court dismissed the Plaintiff’s claims against the Defendant, USPS for failure to meet the standards. Plaintiff’s claims included age discrimination in the workplace and hostile work environment. Plaintiff also requested sanctions be issued to the Defendant for failure to produce specific e-mails to the Plaintiff in a timely manner, and for spoliation of evidence. The Court denied the request for sanctions because Rule 37(e) provides for sanctions if electronically stored information “is lost because a part failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery”. Certain sanctions also require a showing of “prejudice… from loss of information”. In this case, the e-mails were not destroyed, because once the Plaintiff requested sanctions, the Defendants produced the documents that were requested. Also important, the e-mails were such that both the Plaintiff and the Defendant were both parties to the e-mails, therefore both parties would have access to all of the e-mails as they were either sending or receiving them. This means that the e-mails that were not produced by the Defendant, were in fact in Plaintiff’s possession the entire time. The Court must follow the intentions of Rule 37(e) when deciding when to sanction a party in a matter. Here, because the e-mails were not material, or destroyed, and because the Plaintiff had them in her possession the entire time, the Court decided that sanctioned would not be issued. Rachel Smith is a Seton Hall University School of Law student, Class of 2018. She received her B.A in Women’s and Gender Studies from Rutgers University in 2010. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Gone but Not Forgotten

Author: Victoria FerenzCase Citation: Organik Kimya, San. ve Tic. A.S. v. ITC, 848 F.3d 994 (Fed. Cir. 2017)Employee/Personnel/Employer Implicated: EmployeeseLesson Learned: Once the investigation began, they had a duty to preserve all evidence relevant to the investigation. Acting in bad faith as it relates to preserving evidence may result in the most severe of sanctions. In Organik Kimya v ITC, Organic Kimya is appealing a decision that imposed sanctions against them for spoliation of evidence and entering a limited exclusion order against them. This case involved trade secrets regarding paint additives that increased the paint’s opacity. Dow, the market leader in supplying opaque polymers to paint manufacturers in the United States, has maintained their position through trade secret and patent protections. They claimed that the Organik Kimya opaque polymer products infringed Dow’s protections. During the investigation, the ITC found multiple counts of trade secret appropriation, spoliation of evidence, and severe bad faith. The characters in question include former Dow employees Dr. Dilip Nene, Dr. Guillermo Perez, and Leonard Strozzi. Dr. Dilip Nene Dr. Nene had engaged in various technical discussions with Organik Kimya, and when the investigation began, Organik Kimya attempted to purge all of their emails back and forth.  Dr. Nene also removed the hard drive from his personal computer, smashed it with a hammer, and threw it in the garbage. He testified that he did this so that the information on the drive could not be recovered. Additionally, he destroyed a bag full of zip drives. The ALJ found that Organik Kimya had the ability to control Dr. Nene’s acts and that they failed to act responsibly to preserve Dr. Nene’s information. This reckless disregard of their duty to preserve led the judge to believe that it was Organik Kimya’s deliberate plan to destroy the evidence. Dr. Guillermo Perez A few days after the investigation began, Organik Kimya began overwriting Dr. Perez’s laptop’s hard drop by copying the Program Files over 108 times. They also backdated the computer’s clock so that the metadata on the copied files would hide the fact that the overwriting had taken place so recently. Additionally, they used a program called WinHex to make sure that no deleted items could be recovered. Although Organik Kimya claimed that this was “simply maintenance,” the ALJ found that these actions made it impossible to know the exact volume and content of any previously recoverable data. Organik Kimya acted in bad faith by undertaking this massive spoliation of evidence on Dr. Perez’s computer. The ALJ found that the evidence was destroyed with the intent to impair Dow’s ability to prove its allegations of trade secret misappropriation. Leonard Strozzi Four days prior to a scheduled forensic examination of Strozzi’s computer, someone logged onto the computer and deleted over 2,000 files and folders. There was also evidence of numerous undisclosed and unproduced USB storage devices used on Strozzi’s computer. However, before any further investigations, Strozzi took his computer bag, with his computer and storage devices inside, and “accidentally” left it in the bathroom of a highway rest stop. The ALJ found that Organik Kimya had control over Strozzi’s laptop and that deletion of files evinces an attempt to cover-up wrongdoing. Additionally, the ALJ determined that this massive spoliation of evidence was done in an effort to prevent Dow from accessing evidence that would support its allegations, and constituted gross bad faith. Conclusion The ALJ determined, “Organik Kimya flouted its obligation to preserve evidence, deliberately destroyed evidence, and then actively attempted to deceive the undersigned as to what it had done. Given: (1) the grave damage Organik Kimya’s deliberate conduct potentially could have on the administration of justice; (2) the need to deter such egregious conduct in the future; and (3) the certain prejudice to Dow, only the strongest remedy is sufficient.” ALJ Order, 2014 WL 5768576 at 2. This willful, bad faith misconduct deprived Dow of its ability to pursue trade secret misappropriation claims. The Commission determined that the evidence demonstrated that it would have taken Organik Kimya 25 years to develop a commercial opaque polymer comparable to Dow’s one without using Dow’s trade secrets, and therefore found that a 25-year period would be an appropriate length for the exclusion order. Organik Kimya sought an opinion that would allow them to import products developed elsewhere without using Dow’s misappropriated trade secrets, and the Commission allowed this limited exclusion as long as they could prove that they developed the polymers without using any of Dow’s secrets. Such a severe penalty was imposed on Organik Kimya because of the severity of their mistakes. Once the investigation began, they had a duty to preserve all evidence relevant to the investigation. Instead, they wiped computers, deleted thousands of documents, and “lost” physical evidence. It was this gross bad faith that created such severe consequences, both for punishment and as a deterrent effect. Victoria Ferenz is a third year at Seton Hall University School of Law, focusing her studies in the area of Patent Law. She received her B.S. in BioMedical Science from Quinnipiac University. After graduation, Victoria will be clerking in the Superior Court of New Jersey. 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Preserve to Protect (Yourself)

Author: Nick Plinio Case Citation: EEOC v. GMRI, Inc., No. 15-20561 (S.D. Fla. Nov. 1, 2017) Implicated Personnel: Document custodian, EEOC, National restaurant chaineLesson Learned: It pays to institute thorough litigation holds early! When documents are lost in connection with a pending investigation, it becomes very difficult to avoid bad faith accusations and worse, a potential adverse inference, when potentially relevant ESI is deleted or lost from a server.Tweet This: A PSA for large corporations and every one utilizing ESI: Air on the side of over-inclusion when facing an investigation and deciding what to include in a litigation hold, it might just save your case. Background EEOC v. GMRI, Inc. stems from an investigation of prominent restaurant chain Seasons 52 (Seasons) for an alleged nationwide practice of intentional age discrimination in hiring procedures.  During the proceedings before the United States District Court for the Southern District of Florida, the EEOC made a motion seeking a series of harsh sanctions under Federal Rule of Civil Procedure 37 against Seasons based on a failure to preserve relevant job applications, interview booklets, and electronically stored information (ESI).  Seasons claimed that these documents were “missing” and unrecoverable, but the EEOC asserted that the information had actually been intentionally destroyed.  With regard to the ESI specifically, the EEOC sought to prevent Seasons from introducing evidence about the content of “lost” emails and other communications/records.  It also sought to introduce evidence that tended to show the intentional destruction of the information, which the EEOC argued, created the presumptive inference that the emails and other documents contained statements that Seasons had a preference for younger applicants. The real factual dispute here was whether Seasons, before the lawsuit against it was filed, ever knew that the scope of the EEOC’s investigation was “national.”  If so, depending on the circumstances of when and how Seasons obtained that knowledge, it could have been obligated to preserve ESI relevant to hiring practices in all of its restaurants nationwide.  Seasons argued that its obligation extended only to the records of the Coral Gables, Florida restaurant implicated in the original complaints giving rise to the EEOC’s investigation. On August 31, 2011, the EEOC claimed it issued a letter to Seasons, which notified the restaurant that the investigation against it had been expanded to consider its hiring practices around the country.  The following day, it requested a large amount of information and documents from a host of restaurants nationwide due to “an expansion of the case.”  Seasons disputed receipt of the first letter but not the second. This was ultimately a persuasive factor in the court holding that Seasons knew or should have known to preserve documents from the other restaurants pending the completion of the investigation.   The EEOC however, could not prevail on its motion for sanctions—and as a result, compel the inference that the missing ESI contained information adverse to Seasons—unless it demonstrated that the information was crucial to the case or that Seasons acted to intentionally deprive the EEOC of the information.  Ultimately, the court determined that the EEOC had not yet clearly established this point.  As such, the EEOC could not prevail on a presumptive inference-type sanction.  It could, however, argue to the jury that it may reach an adverse interest if, after the EEOC presented its evidence, it believed that Seasons intentionally destroyed the relevant ESI and other documents. E-Discovery Takeaway The takeaway here is to be smart about preservation!  And that Seasons faces some serious consequences for failing to do so, even if it disposed of the ESI inadvertently.  Companies today, especially nationwide entities with multiple locations, benefit immensely from the internet and cloud-based storage services.  This allows such companies to remain organized and effectively manage their affairs.  However, when amassing hundreds of documents, including emails, service records and the like, it can become difficult to know what to hold on to, and for how long.  While companies are certainly not expected to preserve every email or record of every transaction, there are some key steps that can be taken to ensure the right information is retained.  First, IMMEDIATELY upon learning that it has become the subject of an investigation a litigation hold should be initiated to preserve any and all even potentially relevant information to the alleged charge.  As it is the ethical obligation of the in-house attorney and the company to ensure that relevant information is not destroyed, action should be taken as promptly and as thoroughly as possible, even if that means preserving more than is necessary.  The general rule here is to “air on the side of caution,” even if the investigating party does not make clear exactly what needs to be preserved. Perhaps more obviously, a second lesson to take from GMRI is that intentional destruction of documents has severe implications.  As the court notes, a finding of bad faith on the part of the company can and certainly will lead to the inference that the information destroyed was harmful to its case.  As such, companies should be on notice that, simply because ESI can be easily erased and made unrecoverable, doesn’t mean its content won’t still come to light.  All that is necessary is that the opposition makes a showing of bad faith, which can then permit the adverse inference against the document custodian/company.  This should act as an even greater deterrent to carelessness and intentional destruction because, even if the content of ESI was irrelevant to the case, the jury might still be allowed to draw an adverse inference.  In other words, it is sometimes impossible to know for certain what the content of the ESI was, but if a showing of bad faith destruction is made, it won’t matter.  This should also prompt companies, especially those with multiple branches/locations whose operations are not directly supervised by company management, to educate personnel on how to comply with litigation holds and the dangers of destroying information. 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A Due Process Violation Does Not Always Occur if a Police Department Loses a Cell Phone’s Contents that Relate to a Criminal Prosecution

Author: Caiti DerenzeCase Citation: United States of America v. Peterson, 2017 WL 5709567 (W.D. Mo. 2017)Employee/Personnel/Employer Implicated: PersonneleLesson Learned: A police department does not have to take every precaution to ensure that an electronic device and its data are maintained in a manner that protects and preserves evidence, unless that evidence is exculpatory and material.Tweet This: An indictment against a defendant can be dismissed if lost electronic evidence was exculpatory and material. A criminal defendant has a high standard to meet to prove that a police department’s loss of electronic evidence amounts to a due process violation. In Joplin, Missouri, a defendant was indicted for using a cellular telephone network to “knowingly persuade, induce, and entice” a fifteen-year-old girl to engage in sexual activity with him. Evidence against the defendant came from the minor’s cellphone, which was handed over to Joplin’s police department by the minor’s parent. The department preserved that evidence by creating a physical image of the phone, which was stored on the department’s network storage device. Before the department returned the phone to the minor’s parent, it wiped the phone’s contents in accordance with the department’s policy at that time. A few months after the evidence was stored, the network storage device crashed accidentally. This crash caused the department to lose the image of the minor’s cell phone and images of other cell phones not involved in the case. Notably, the department had no back-up of the network storage device. The only data the department had after the crash was that which it hand-picked and printed out, including thumbnails of certain images and copies of the text messages between the minor and defendant. The defendant claimed that the loss of the cell phone’s content amounted to a due process violation and therefore, the indictment against him should be dismissed. He argued that the department failed to take “every precaution to ensure that the Device and its data w[ere] acquired and maintained in a manner that protects and preserved the evidence …  constiut[ing] a violation of the Defendant’s right to due process.” The court disagreed.  It explained that a court determines whether an indictment can be dismissed due to spoliation of the evidence through three separate tests. The first test is whether the lost evidence will “clearly exculpate the defendant” and if so whether the destruction of said evidence was done in bad faith. The court determined that the evidence contained on the cell phone did not have any exculpatory value, which meant the defendant failed to meet the first test. The second test is whether the destroyed evidence would have only “potentially exculpate[d] the defendant” and if so, whether the evidence was destroyed in bad faith. Again, the court determined that the evidence was not exculpatory. As to the bad faith, it held that bad faith only occurs when a police department purposefully destroys evidence to deprive the defendant of it. Here, the crashing of the network storage device and the wiping of the cell phone before returning it to the minor’s parents were only considered negligent destruction of evidence and did not meet the bad faith standard. Finally, the third test states, “if the government has destroyed evidence that has no exculpatory value whatsoever, there is no due process violation.” Since the court determined the lost evidence had no exculpatory value, there was no due process violation and the indictment against the defendant could not be dismissed. 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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