Do You Want A Return Receipt With That?
June 20, 2011It is common practice in litigation between industry competitors that litigants will seek protective orders from the court to ensure that in the exchange of discovery, neither party’s trade secrets are revealed or inadvertently made public. It is also common practice for companies to go to great lengths to ensure that they do not destroy any evidence that might be pertinent to the litigation. One method used in preservation is an email filter, whereby incoming and outgoing emails with certain words are copied into a drop box without the sender or receiver ever knowing. This is generally a very effective method. But what happens if a sender’s email has a return receipt on it? Is the jig up? Or even worse, what if the sender, although not a party to the litigation, is not supposed to receive correspondence regarding the litigation because there is a protective order in place?
While such a scenario is seemingly farfetched, this is precisely what happen in Gyrodata Inc. v. Gyro Technologies, Inc., 2010 U.S. Dist. LEXIS 120084 (D. Conn. Nov. 12, 2010). The plaintiff in this case was involved in two concurrent lawsuits: one with AIS and the other with a group of Texas Defendants whose principle was Wallis (hereinafter “Wallis”). During Gyrodata’s lawsuit with Wallis, Wallis produced an email that appeared to be from Gyrodata to Wallis. However, on closer look, the metadata revealed that the email was actually from AIS. This caused Gyrodata great alarm because on its face it appeared that AIS had violated the protective order issued by the court in its litigation with Gyrodata.
When Gyrodata asked AIS about the email to Wallis, AIS explained that during its litigation with Gyrodata, it had created a drop box with the name Gyrodata to capture emails related to the pending litigation with Gyrodata. In an effort to preserve documents, the information technology unit at AIS set up a filter system whereby incoming and outgoing emails with certain words would be copied into the drop box without the sender or receiver knowing. The suspicious email AIS explained, stemmed from an email Wallis sent to AIS containing certain words triggering the filter system. As such, Wallis’ email was copied into the drop box. Unbeknonwst to AIS, Wallis had set up his email to require a return receipt message when his email was received and opened. Thus, when AIS went through the emails in the drop box and opened Wallis’ email, they triggered a return receipt to Wallis. This created the illusion that someone from AIS was sending information regarding Gyrodata to Wallis.
Unsatisfied with this explanation, Gyrodata sought a subpoena for all of the documents captured in AIS’s drop box, including those not related to the lawsuit with Gyrodata. AIS refused arguing that Gyrodata’s subpoena did not seek relevant information and that producing said documents would create a significant burden. Gyrodata then filed a motion to compel.
On its review, the court reasoned that the mere fact that AIS and Wallis had communicated was not suspicious because AIS was a supplier in the field and Wallis was a buyer. Furthermore, the court noted that AIS let Gyrodata look at all of the emails to and from Wallis. It further noted that in that search, Gyrodata did not find any evidence of impropriety. Thus the court held that, given AIS’ reasonable explanation of the situation and the fact that Gyrodata gave no reason for compelling evidence other than its own suspicion of AIS, the motion to compel should be denied.
The court concluded that a litigant must show some threshold level of relevance before the doors of discovery will be opened. Lack of trust and return receipt message are not enough. Therefore, litigants and their IT staff need not worry about the implications of creating a drop box that captures emails that might require return receipt as a return receipt message in itself is not evidence of a violation of a protective order.
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Tagged as: Legal Hold/Preservation, Production of Data.
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