January 31, 2009
Citation: Flagg v. City of Detroit, 253 F.R.D. 346 (E.D. Mich. 2008)
e-Lesson Learned: The content of text messages and other electronic communications sent in similar ways over an employer-provided system are probably not private! Furthermore, employers and employees alike cannot prevent discovery of such messages by merely having a third-party maintain storage of these communications.
Storing electronic communications, such as text messages, with a third-party does not remove a party’s discovery obligation to produce relevant, non-privileged electronic communications within its control, custody or possession.
This case has all the elements of a dramatic made-for-TV movie: an exotic dancer, murdered several months after she supposedly “performed” at the home of the city mayor, and her grieving family, claiming that the police concealed evidence and inadequately investigated the murder as a result of the dancer’s link to the mayor’s rumored party. (Flagg v. City of Detroit, 2006 U.S. Dist. LEXIS 62047 (2008)). At the heart of this TV drama, however, exists a controversial and emerging issue in electronic discovery—the discoverability of text messages stored by a third-party service provider.
So how did we get here?
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Tagged as: Discoverability, Production of Data
View more articles implicating: Employees, Miscellaneous
January 30, 2009
Citation: Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, 2008 U.S. Dist. LEXIS 99511 (D.D.C. 2008)
Employee/Employer Implicated: Leader of the Free World (i.e., Executive Office of the President); other government agencies; information technology managers
e-Lesson Learned: Not all records management systems are created equal. Electronic records management systems often appear to be very thorough in their cataloging, storing, and retention of electronic information, such as emails. However, when certain federal statutes set specific record retention requirements which must be followed by government agencies, the records management system currently in place may not satisfy the statutory requirements.
In Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, the plaintiff was a government ethics watchdog. CREW, as the organization is called, sued various government organizations, including the Executive Office of the President (yes, that President, George W. Bush), for an alleged failure to recover, restore, and preserve electronic communications created and/or received within the White House in violation of the Federal Records Act and their failure to establish an electronic records management system that complies with FRA. The defendants in the case moved to dismiss the case on several grounds, each of which the court rejected. That means that if nothing else, a lawsuit for violation of the Federal Records Act can survive and move forward.
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Tagged as: Accessibility, Computer Forensics Protocols
View more articles implicating: Employees, Government Officials, Information Technology Professionals
January 29, 2009
Citation: In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (D. Del. June 4, 2008)
Employee/Employer Implicated: Custodians, misc. employees, outside counsel
e-Lesson Learned: Failure by employees in charge of carrying out a document retention plan can result in serious consequences for the company. If the corporation determines not to suspend the auto-delete function of its email system, the emails must be backed up to ensure that they are accessible. With regard to privileged information, a company that partially discloses a portion of the privileged communication or puts the content of the information “at issue” risks waiving the privilege. However, core work-product is not necessarily waived where it can be distinguished from factual information.
In 2005, Advanced Micro Devices (“AMD”) brought a lawsuit against Intel for alleged anticompetitive and monopolistic practices in the microprocessor market. Both parties recognized that the litigation could result in the largest electronic document discovery ever; production of “somewhere in the neighborhood of a pile 137 miles high.”
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Tagged as: Production of Data, Waiver
View more articles implicating: Document Custodians, Employees, Miscellaneous, Outside Counsel
January 28, 2009
Citation: Qualcomm, Inc. v. Broadcom Corp., No. 05-CV-1958-B, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)
Employee/Employer Implicated: In-house counsel and retained attorneys, as well as anyone involved in the oversight of legal action or proceedings
e-Lesson Learned: Make sure that your company has a clear case review and discovery protocol to ensure that attorneys working for you have the proper guidance. If you are involved at any level of the litigation process, from in-house counsel to lead trial attorney to junior associate, you are always responsible to act ethically in the work that you do for your company.
Attorneys long to be described in print as having an “impressive education,” “extensive experience,” and being “talented” and “well-educated.” However, when those words appear in a court opinion enumerating your ethics violations during a cover-up, they don’t ring as sweet.
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Tagged as: Accessibility, Computer Forensics Protocols, Discoverability, Good Faith, Procedure, Production of Data, Sanctions
View more articles implicating: In-House Counsel
January 27, 2009
Citation: Treppel v. Biovail Corp., No. 03 Civ. 3002 (PKL)(JCF), 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008)
e-Lesson Learned: A corporation has an obligation to preserve any information that is potentially relevant to a litigation as soon as that litigation becomes known or can reasonably be anticipated. Once the threat of a pending litigation becomes real, a corporation must issue a clear litigation hold to all employees and then taken the necessary steps to ensure that everyone actually complies with that hold. Failure to comply with these obligations can result in sanctions ranging from having to foot the bill for additional discovery to an adverse inference instruction to a jury.
Shortly after being made aware of a lawsuit against his company, Biovail’s General Counsel orally instructed two company executives to preserve any relevant information to the lawsuit. However, the General Counsel never issued any written instructions regarding this litigation hold, nor did he conduct any follow up to ensure actual compliance. While Biovail did in fact preserve and backup much of the necessary information, it failed to take the steps necessary to preserve several key items of ESI, including a high level executive’s e-mails. As a result, the plaintiff asked the court to compel Biovail to produce additional ESI and to have Biovail sanctioned for failing to preserve evidence relevant to the case.
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Tagged as: Good Faith, Legal Hold/Preservation, Sanctions, Spoliation
View more articles implicating: In-House Counsel
January 26, 2009
Citation: Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595275 (D. Md. Oct. 15, 2008)
e-Lesson Learned: Do your research, tailor your discovery requests, provide a factual basis for your objections, and, above all, communicate and cooperate with your adversary when it comes to discovery.
In Mancia v. Mayflower Textile Servs. Co., the discovery dispute arose from a collective action filed by a group of employees for payment of wages under the Fair Labor Standards Act of 1938 and Maryland state laws. The plaintiffs served extensive discovery requests on the defendants. The defendants responded to a number of these requests with “boilerplate” objections.
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Tagged as: Good Faith, Meet & Confer, Procedure, Sanctions
View more articles implicating: In-House Counsel
January 25, 2009
Citation: Digicel Limited v. Cable & Wireless Plc, 2008 EWHC 2522 (Ch)
Digicel Limited v. Cable & Wireless Plc, 2008 WL 4698881
e-Lesson Learned:
1) A disclosing party cannot claim that an additional search will produce only duplicate documents. If a class of documents was excluded from an initial search, a party cannot claim a defense that the documents are merely duplicates of the documents already produced. The search will be required if the initial search was unreasonable.
2) A disclosing party should not conduct a keyword search unilaterally without first conferring with the opposing party. The court will determine what a reasonable search is, and if the search is unreasonable, an additional search will be required. Conferring with the other party beforehand to determine their intended scope will limit the possibility that an additional search will be required at an additional cost.
This case originated from a dispute during an attempt to deregulate the telecommunications industry in the Caribbean. The claimants are mobile phone companies in the Carribean who sought to connect to interconnect their phone lines to the existing landline provider’s pursuant to the newly issued licenses. The defendants are the incumbent landline telephone providers who relinquished their exclusive telecommunications licenses in agreements with the relevant governments. The claimants argued that the defendants intentionally delayed in granting the interconnections so as to benefit financially and competitively. The claimants also argued that this deliberate and unlawful delay was part of a conspiracy between all or at least some of the defendants. The defendants argue that these claims are unsupported and baseless.
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Tagged as: Accessibility, Cost Sharing & Shifting, Discoverability, Meet & Confer, Procedure, Production of Data
View more articles implicating: Miscellaneous
