Welcome to the new eLessons Learned

eDiscovery Written by Law Students

eDiscovery Written by Law Students

eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.

Law + Technology + Human Error

Law + Technology + Human Error

Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.

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New to the eDiscovery world?

Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There

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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.

Can You Get Personal Data Contained Within a Social Media Account of an EU Citizen for eDiscovery Purposes? It Depends.

Author: Sarah E. Hsu WilburCase Citation: Data Prot. Comm’r v. Facebook Ir. Ltd. & Schrems, [2017] 2016 No. 4809 P. (H.Ct.)Employee/Personnel/Employer Implicated: Facebook; Social Media ProviderseLesson Learned: Whether for eDiscovery purposes or otherwise, you should not attempt to obtain or transfer (or have your client transfer) personal data (including data from a social media account) of any EU citizens into or within the US without first checking to see whether obtaining or transferring such data would violate any EU privacy laws and expose you or your client to being sued.Tweet This: Don’t try to get or send personal data of EU citizens before first checking to see if it violates any EU privacy laws! In this case, Facebook subscriber Maximillian Schrems sued Facebook Ireland because he said Facebook Ireland transferred his personal data to Facebook Inc. in the US in violation of EU privacy laws. As brief background relevant to this case, in 2013, former NSA employee Edward Snowden went rogue and disclosed documents that showed the NSA operated the Internet and telecommunications systems of some major global tech companies including Facebook, thereby allowing the NSA to conduct surveillance on said companies. Schrems thus argued that in light of Snowden’s disclosures, Facebook Ireland transferring “his personal data to its US parent, Facebook Inc., for processing was unlawful both under national and EU law.” He argued that Facebook Inc. is subject to a number of laws and other orders that require it to disclose personal data of individuals to US authorities, which in and of itself violates the EU’s privacy laws, even if the US government never accessed his personal data. Facebook Ireland did not deny that it transferred Schrem’s personal data and in fact continued during litigation to transfer Schrem’s and other EU-resident Facebook subscribers’ personal data to the EU. Facebook Ireland argued, however, it had the right to do this because of its data transfer and processing agreement with Facebook Inc. and because it had language that resembled the “standard contractual clauses” that basically operated as a safe harbor for companies transferring such personal data of EU citizens to other countries. “Standard contractual clauses” (SCCs) are an EU-approved mechanism to transfer personal data between US (or other non-EU countries) and EU countries, which clauses essentially guarantee that personal data of EU citizens transferred to a non-EU country pursuant to those clauses enjoys the same amount of protection that the EU provides for that data. In other words, they ensure “adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals,” including EU resident Facebook subscribers, and are approved under current EU data privacy laws. Schrems argued that a company such as Facebook using the SCCs and transferring his personal data and that of other EU citizens to the US does not provide the same privacy protections as the EU offers and therefore violates EU law. The Data Protection Commissioner investigated the case and agreed with Schrems. The High Court of Ireland decided in favor of Schrems, concluding that the laws and practices of the United States “do not respect the essence of the right to an effective remedy before an independent tribunal as guaranteed by [EU law], which applies to the data of all EU data subjects transferred to the United States.” The Court reasoned that the validity of SCCs “cannot depend on the automatic exercise of a discretionary power,” reasoning that the EU recognizes a right to data privacy as a “fundamental right and freedom,” unlike in the United States. Thus, following this decision, it is unclear whether SCCs continue to be a valid way to transfer personal data to third countries. This decision impacts eDiscovery in the US for cases that involve parties who are EU citizens because of the strict EU data privacy laws that apply to those parties. When dealing with EU citizen parties from whom you may need eDiscovery or if you need eDiscovery that includes the transfer of personal data of EU citizens or personal data that is stored in the EU (particularly personal data found on a social media site), you should always check the current EU privacy laws and recent decisions involving personal data of EU citizens to make sure you are requesting the information in a lawful way. Be careful in framing the requests for this information and in requesting this information in the first instance so as not to risk yourself or your client to possibly being sued for violating EU data privacy laws. Keep in mind you may not be able to obtain this information unless an exception like consent or national security applies. Sarah is a Seton Hall University School of Law student (Class of 2018), pursuing an Intellectual Property concentration through the Privacy and Security Law Track. After graduating, she will begin working as a Litigation Associate in a large Manhattan law firm. Sarah graduated from the University of Florida in 2009 with a B.S. in Journalism, and she worked as both a multimedia journalist and a legal assistant before attending law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Too Late

Author: Victoria FerenzCase Citation: Youssef v. Lynch, 2016 WL 183504 (D.D.C. 2016)Employee/Personnel/Employer Implicated: Employer, EmployeeeLesson Learned: Request everything you would like access to during discovery. You may introduce extrinsic evidence to impeach a witness, but not to prove specific acts of conduct to attack their character. This case is about an FBI agent, Bassem Youssef, who claimed that Mr. Armando Fernandez, an FBI employee who served as the Chairman of the Career Board, was acting in a discriminatory manner when he did not select Mr. Youssef for the Assistant Section Chief position. The plaintiff (Youssef) was seeking subpoenas to collect documents that would implicate the truth and veracity of defendant (Mr. Fernandez), and make clear his bias. However, he did not do this until the discovery period had ended. Plaintiff made two requests for documents: 1) any and all documents contained in defendant’s personal file; and 2) any and all documents relating to disciplinary actions or investigations related to Mr. Fernandez. The plaintiff believed that he was entitled to these documents because he could not have discovered the evidence until defendant was fired. On the other hand, the defendant argued that plaintiff should not be entitled to either category of documents because, during discovery, he never sought the material he is now seeking. Defendant explained that plaintiff could have served a document requesting documents related to his personal files or candor issues during discovery, but chose not to. The Court determined that the plaintiff could not obtain all of the requested documents in defendant’s file. As the court explained, “...a subpoena may not be used as a substitute for civil discovery. Here, it is undisputed that Plaintiff did not request Mr. Fernandez’s personnel files during discovery, even though Plaintiff had the opportunity to do so.” Id at 2. The plaintiff is not afforded a second chance at discovery just because circumstances for the defendant changed before the case had closed. If the plaintiff wanted these documents, he should have requested them during discovery. The court did find that the plaintiff was entitled to two letters concerning defendant’s credibility, but only to the extent that portions of the letters would provide plaintiff with a good faith basis to conduct impeachment of the defendant at a deposition or at trial. Id at 2. Although the court would not admit the letters in their entirety, because they were not wholly related the plaintiff’s claim or the facts underlying the plaintiff’s case, small portions of the letters were relevant on the basis that they implicated the truth and veracity of the defendant. The court also mentioned that, unlike the documents mentioned above, the plaintiff could not have discovered these materials during discovery. Additionally, the plaintiffs limited access to the letters would not prejudice the defendant and would not cause any undue delay. The portions of these letters admitted were limited by the Federal Rule of Evidence 608(b), which states that extrinsic evidence is not admissible to prove specific instances of a witness’s conduct to attack or support their character for truthfulness. Id at 3. The letters are only admissible to impeach the defendant, and no more. Conclusion In the end, the court granted-in-part, and denied-in-part the plaintiff’s motion for issuance of subpoenas. The plaintiff was not entitled to all of the documents in defendant’s personnel file but is entitled to portions of two letters to the extent that they would be used to impeach the defendant’s testimony. 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. Want to read more articles like this?  Sign up for our post notification newsletter, here.

How Are Two Motions to Suppress Cell Phone Data Different? One is Granted and One is Denied.

Author: Preeya SoniaCase Citation: U.S. v. Williams, 161 F. Supp. 3d 846 (N.D. Cal. 2016).Employee/Personnel/Employer Implicated: U.S. Attorney’s Office, San Francisco, CAeLesson Learned: The Government’s affidavit in support of a warrant for Defendant 1’s cell phone records should have established probable cause. Additionally, although the court denied Defendant 2’s motion to suppress all cell phone evidence obtained, the Government should not have obtained his cell phone data through an unjustified exigent request.Tweet This: Motion to Suppress granted due to lack of probable cause; 2nd motion denied despite unlawful exigent request An affidavit written by the San Francisco Police Department (SFPD) in support of a warrant for the seizure of cell phone records of two defendants stated the following: SFPD officers responded to reports of a shooting and found Calvin Sneed dead in his car with a gunshot wound in his head. Next to his car was his minor girlfriend. She told the police that she had been living in Los Angeles for the past eight months with her brother, Defendant 1. She stated that Sneed was a pimp and that she had been advertising herself as a prostitute in L.A. She and Sneed had driven to San Francisco the day before to speak with her parents. After an argument with her mother that day, she asked Sneed to pick her up. He arrived shortly afterward and when she was about to get in his car, an SUV pulled up and fired shots at Sneed. After allowing police to search her phone, the SFPD found the numbers of her brother, Defendant 1, and her father, Defendant 2. Both defendants later filed motions to suppress the cell phone data obtained pursuant to the warrant, which was based on the affidavit information stated above. The court granted Defendant 1’s motion to suppress because it found that the warrant failed to establish probable cause. The affidavit hardly mentioned Defendant 1 and included only passing, innocuous references to him. Thus, it was entirely unreasonable to believe that the affidavit established probable cause to search Defendant 1’s cell phone data. Additionally, the court determined that the inevitable discovery doctrine did not apply because the inevitability of discovery was not demonstrated in a compelling way. However, the court did not grant Defendant 2’s motion to suppress, even though the SFPD’s exigent request was unjustified and the warrant improperly relied on the information gleaned from the exigent request. The court concluded that the lawfully obtained information in the affidavit was enough to provide a substantial basis for concluding that the affidavit established probable cause. Additionally, when considering the seriousness of the crime and the lawfully obtained information, the court stated that the SFPD would have sought the warrant even if it hadn’t made the unjustified exigent request. Preeya Sonia is a third-year law student at Seton Hall University School of Law and resides in Newark, NJ. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When is a Service Provider Who Discloses Non-Content Personal Information to Authorities Immune From Civil Liability under the SCA? When it has an Objective Good Faith Belief in the Existence of an Emergency

Author: Samantha MonteleoneCase Citation: Alexander v. Verizon Wireless Services LLC 2017 (S.D. Fla. 2017)Employee/Personnel/Employer Implicated: Verizon Wireless Services, L.L.CeLesson Learned: A service provider is statutorily immune from liability and further entitled to a “good faith reliance” affirmative defense when it has an objectively good faith belief in the existence of an emergency.Tweet This: Court Dismisses Complaint Against Verizon Claiming Service Provider Violated the SCA When It Provided Detective Non-Content Information About Location of Alleged Arsonist The Fifth Circuit affirmed the District Court’s judgment dismissing the Plaintiff’s complaint for failure to state a claim against Verizon under the Stored Communications Act (SCA). The Court adopted an objective standard to the “good faith” requirements of Sections 2702(c)(4) and 2707(e)(1) of the SCA and found that Verizon’s conduct was objectively reasonable. In August 2014, a fire took place at the Nixon’s home in West Monroe, Louisiana. The Nixons explained to Detective Gary Gilley that they believed Matthew Alexander (Plaintiff), a former employer of Mr. Nixon, was responsible for the fire. Mr. Nixon gave Detective Gilley Alexander’s cell phone number, home address, and the make, model, and license plate number of Alexander’s car, all of which he had from when his company employed Alexander. Detective Gilley then contacted Verizon Wireless Services, L.L.C., the service provider for the cell phone number that Mr. Nixon provided him. Detective Gilley spoke with Andrea Cole, a Verizon representative, and told her that he needed to know where the subscriber to whom the number belonged had been on the day of the alleged arson, explaining that the individual to whom the number belonged was his main lead in an alleged arson.  Cole told Detective Gilley that she believed the situation met Verizon’s guidelines for releasing the information he requested and then sent him an “Emergency Situation Disclosure” form, which Detective Gilley filled out and returned to her. The form included a question asking whether the request “potentially involves the danger of death or serious physical injury to a person, necessitating the immediate release of information relating to the emergency.” In response, Detective Gilley checked the box next to “yes.”  In the box for additional comments, Detective Gilley wrote: “This case is in connection with an Arson, House was set on fire with victims inside.”  Detective Gilley included his name, badge number, contact information, and title as a “Senior Investigator.” Moreover, he signed the form under a certification stating “I certify that the foregoing is true and correct and understand that Verizon Wireless may rely upon this form to make an emergency disclosure to my law enforcement agency or governmental entity pursuant to 18 U.S.C. § 2703(b)(8) and § 2702(c)(4).” After receiving the form, Verizon provided Detective Gilley with the requested information, including the identity of the subscriber, location information, incoming and outgoing call details, and SMS details spanning from three days before the date of the incident to the time the records were sent to Detective Gilley. All of the information received from Verizon was non-content information. Based in part on the information from Verizon, Alexander was arrested and charged with aggravated arson and two counts of attempted second-degree murder. Separate from the criminal proceeding, Alexander filed a civil lawsuit against Verizon in federal district court, alleging various violations of the SCA and seeking $5,000,000 in damages. Verizon filed a motion to dismiss for failure to state a claim upon which relief can be granted. The motion was referred by the District Court to a magistrate judge, who issued a report and recommendation that the motion be granted. The magistrate judge concluded that, taking all of the facts in Alexander’s complaint as true, the complaint established on its face that Verizon is statutorily immune from liability and further entitled to a “good faith reliance” affirmative defense. The district court dismissed Alexander’s lawsuit and Alexander appealed. Alexander challenged the District Court’s determination that Verizon, as a service provider, is protected from liability under Sections 2703(e) and 2707(e) based on the emergency exception. Alexander argued that the information provided by Detective Gilley to Verizon regarding the alleged emergency lacked enough specificity for Verizon’s reliance on it to be in good faith. Alexander also faults Verizon for failing to take additional steps to challenge Detective Gilley’s assessment of the situation as an “emergency.”  In Verizon’s view, the SCA allowed it to rely in good faith on Detective Gilley’s written representations, and Alexander has no factual allegations that could plausibly show Verizon acted in bad faith. Verizon also argued that asking its representatives to question the emergency assessments of police officers is inconsistent with the statute and its design. First, the Court determined that an objective approach to the good faith requirements found in § 2702(c)(4) and § 2707(e)(1) of the SCA is required. The Court reasoned that an objective approach is consistent with a majority of circuits to have considered this issue. The Court also explained that an objective approach strikes the right balance between providing recourse for subscribers whose rights under the SCA have been violated and minimizing social costs, including the risk that fear of monetary liability and harassing litigation will unduly inhibit the willingness of Internet service providers voluntarily to help government officials in times of emergency. Ultimately, the Court affirmed the district court’s judgment dismissing Alexander’s lawsuit, holding that Verizon’s conduct was objectively reasonable. The Court highlighted that Verizon only released the non-content information after it received a signed and certified form indicating that the request involved: (1) “the danger of death or serious physical injury to a person, necessitating the immediate release of information relating to that emergency;” (2) an alleged arson, and (3) victims who were within the home when it was set on fire. The Court also noted that Detective Gilley listed identifying information, such as his badge number and title as senior investigator, making it reasonable for Verizon to rely on its contents. The Court found that an affirmative defense is established on the face of Alexander’s complaint, holding that Verizon acted reasonably in concluding that there was “an emergency involving danger of death or serious physical injury to a person” that required Verizon to act without delay.  Samantha Monteleone is a third year law student at Seton Hall University School of Law (Class of 2018).  She was born and raised in New Jersey and has plans to practice in the state after graduation.  She has a passion for all things family law but enjoys reading and writing about all vanguard topics in the law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

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.

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