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.

New to the eDiscovery world?

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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How Far Does a Party’s Legal Obligation to Produce Extend?

Author: Markiana Julceus   Case Citation: Jackson v. E-Z-Go Div. of Textron, Inc., No. 3:12-CV-154-TBR, 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 21, 2016)   Employee/Personnel/Employer implicated:   Outside Counsel   eLesson Learned: A Defendant’s duty to produce only extends as far as their control, and “control” under FRCP 34 means the “practical ability to obtain” the discovery.   Tweet This: Control for discovery purposes is limited by practicality.     FRCP 34 provides that discovery requests upon another party are proper if the production sought is "in the responding party's possession, custody, or control." “Control” is likely broader than you think it is.  This products liability lawsuit arose out of an accident involving an electric golf cart that led to the tragic death of one of the passengers. As part of the lawsuit against the golf cart manufacturer, Plaintiff, the deceased’s mother, sought discovery of incident reports, involving both the cart at question and other products the Defendant produced over the years, believing that the discovery would show that the Defendant was aware of these supposed defects. The Magistrate Judge directed the Defendant to produce non-privileged information from both internal and external sources regarding “other E-Z-GO incidents related to any of the four design features and other E-Z-GO incidents for which Defendants are not able to exclude that possibility that the incident may relate to those features.”  The “internal sources” included company records stored in an off-site, records of and correspondence with Defendants’ in-house counsel relating to prior claims and incidents, and Defendant’s own risk database known as “Risk Console”.  The “external sources” referred to outside vendors, including insurance companies, outside legal counsel, and expert witnesses who provided services in prior litigation. The Defendant strenuously objected on several grounds, the foremost of which was the argument that the information in the possession of external sources was not within their control. In assessing the external sources, the District Court agreed with the Magistrate Judge that the incident records from the company’s former counsel were within the Defendant’s control. As a result of the previous legal relationship between the parties, the Defendant’s had the “legal right to obtain the documents on demand.”  However, the District Court reversed with respect to information possessed by former insurance carriers, former expert witnesses, and former litigation consultants.  The defendant “has no practical ability, and therefore no ‘legal right’ to demand that independent third parties, not involved in the current litigation perform searches of their documents and produce documents that did not arise out of the current litigation.” The Court refused to require that the Defendant track down third parties and force those third parties to search through their documents in order to provide the requested discovery.   In short, what constitutes “within a party’s control” for discovery purposes is broader than you think it is but limited enough to ensure that discovery won’t become an undue burden.   Markiana received her B.S. in Diplomacy and International Relations from Seton Hall University in 2014 and will receive her J.D. from Seton Hall University School of Law in May 2017. After graduation, Markiana will clerk for an Associate Justice of the New Jersey Supreme Court. 

A Tale of Two Motions to Compel: The Need to Read the Rules

Author: Brendan Johnson   Case Citation: Pyle v. Selective Ins. Co. of Am., No. 2:16-cv-335, 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sep. 30, 2016). See attached PDF.   Employer/Employee Implicated: No Employees implicated this case deals with Plaintiff Attorney’s duty to provide HIPPA authorizations and search terms.   eLesson Learned: Electronic Discovery should be a party driven process, this means that attorneys must meet and confer and attempt to reach practical agreements where possible.   Tweet This: Don’t be so formalistic -- FRCP for eDiscovery are to be read broadly!     This case is broken down into two motions and an order from the court. In the first motion, Plaintiff disclosed three doctors as individuals who are likely to have discoverable information on July 7, 2016. On September 6th Defense counsel severed Plaintiff with a request for production of document seeking medical records. Defendant brought this motion before the court on September 30th request to the court compel Plaintiff to produce documents. This motion was denied because F.C.R.P gives 30 days to respond to a request to produce. Since it had not yet been 30 days the motion was premature. The second and more important motion dealt with the Plaintiff refusing to give search terms to aid the Defendant in their eDiscovery. Plaintiff made a request for the production of “all emails, correspondence, memorandum, and/or other documents” from several of Defendants employees. Defendant responded by giving some documents and requesting that plaintiff give some agreeable search terms to aid in the eDiscovery. Plaintiff refused to give any search terms. Consequently, Defendant requested a second time and this motion was brought before the court to compel Plaintiff to provide search terms. Plaintiff claimed that there was no law or support for Defendant’s contention and the Court completely disagreed. The Court found that Defendant’s request was completely within the scope of discovery by the letter and the spirit of the Federal Rules of Civil Procedure. The Court stated, “electronic discovery should be a party-driven process.” Parties must meet and confer to and reach practical agreements without the court having to micromanage “search terms, date ranges, key players and the like.”  Trusz v. UBS Realty Inv’rs LLC, No. 3:09 CV 268 (JBA), 2010 U.S. Dist. LEXIS 92603 (D. Conn. Sep. 7, 2010). The Court granted the motion to compel and ordered that Plaintiff meet with Defendant and confer to establish agreeable search terms. The Court did not set a time limit for this meeting, but stated that it was in the best interest of both parties to resolve the issue as quickly as possible.   Brendan Johnson, a Seton Hall University of Law student Class of 2017, focuses his studies in the area of corporate litigation. Symposium Editor of the Legislative Journal. Will begin Clerking for the Honorable Judge Bariso August 2017. 

What Happens When an Employee Goes on an E-mail Deleting Spree?

 Author: E-Discovery Guru Case Citation: Orchestratehr v. Trombetta, 178 F.Supp.3d 476 (N.D.Tex. 2016) Employee Implicated: Employee eLesson Learned: Failure to prove that e-mails pertaining to a discovery request were deleted in bad faith on the part of the defendant or with the requisite intent to deprive plaintiff of the use of them in litigation will not yield sanctions against the defendant. Tweet This: Even if spoliation of evidence has occurred there will be no sanctions unless showing of bad faith or intent to deprive its use. The legal question of what happens when relevant evidence is spoliated versus when is spoliation the product of regular, routine deletion was at issue in this case. Plaintiffs contend that Defendant Mr. Trombetta intentionally spoliated crucial evidence by deleting e-mails that would have been unfavorable to him in this lawsuit. Consequently, Plaintiffs sought an adverse inference jury instruction as a sanction. “Under the spoliation doctrine, a jury may draw an adverse inference ‘that a party who intentionally destroys important evidence in bad faith did so because the contents of those documents were unfavorable to that party.’” Whitt v. Stephens County, 529 F.3d 278, 284 (5th Cir.2008)(quoting Russell v. Univ. of Texas., 234 Fed. Appx. 195, 207 (5th Cir.2000)). The Court, here, recognized it had a right to assess sanctions using its inherent powers. See Hodge v. Wal-Mart Store, Inc., 360 F.3d 446, 449 (4th Cir.2004) (“The imposition of a sanction . . . for spoliation of evidence is an inherent power of the federal courts.”) Mr. Trombetta, the Court stated, had the “duty to preserve evidence . . . when the [he] ha[d] notice that the evidence [was] relevant to the litigation or should have known that the evidence might be relevant.” Orchestratehr, Inc. v. Trombetta, 178 F.Supp.3d 476, 489 (citing Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 615-16 (S.D.Tex2010)). In this instance, however, the Court believed that the issue of sanctions was covered by Federal Rule of Civil Procedure 37, as amended effective December 1, 2015, to prove sanctions against a party for the failure to preserve electronically stored information. See Fed. R. Civ. P, 37(e). Mr. Trombetta had anticipated litigation when he resigned from Orchestratehr and when he deleted the e-mails at issue. Moreover, in some instances he even said he “may have” intentionally deleted e-mails to cover his tracks. However, there is also another side to the coin. Mr. Trombetta, during the normal course of business, deleted emails on a regular basis unless there was a specific business reason to keep them. He asserted that he “did not know or anticipate that any of the e-mails [he] deleted within the course of [his] work for Orchestratehr would be used in a lawsuit against me [him] or anyone else.” Orchestratehr, 178 Supp.3d at 491. Being that the e-mails were all already backed up on the company’s server, Mr. Trombetta affirms that he never removed or deleted an email from its servers. Ultimately, the Court believed that the evidence established that Mr. Trombetta was aware of potential litigation at the time he deleted the emails and that he knew or should have known that emails on certain subjects might be relevant to the litigation. However, the evidence was less than clear as to whether Mr. Trombetta acted in bad faith or with the intent to deprive another party of the information. As such, the Plaintiff’s Motion for Sanctions against Mr. Trombetta for the spoliation of evidence was denied. In order to prevent such a mishap from taking place again, Mr. Trombetta and others in his position should be more in tune with the way they conduct e-mail deletions. Perhaps, he should have asked colleagues whether such the behavior of routinely deleting emails was appropriate when he knew that potential ensuing litigation might call those e-mails he deleted into question.   E-Discovery Guru will receive his J.D. from Seton Hall University School of Law in 2018. He is pursuing a course load that is geared toward becoming a transactional attorney. His membership on one of the Seton Hall Law journal is aimed at further honing his legal writing and research skills should such skills be required in his post-graduation job. Prior to law school, he was a 2015 summa cum laude graduate of Seton Hall University’s College of Arts and Science where he received his B.A. in Political Science. E-Discovery Guru spent the last summer interning for a State Court Judge in New Jersey. 

IRS is 0-2 in a Battle Against Technology Assisted Review

Author: Stephen Daniels   Case Citation: Dynamo Holdings v. Comm’r of Internal Revenue, Docket No. 2685-11, 8393-12 (T.C. July 13, 2016).   eLesson Learned: Judicial bodies are trending towards acceptance of computer-assisted discovery techniques, perhaps even bordering on embracing it, like in the Dynamo Holdings decisions.   Tweet This: The IRS loses yet another battle against technology assisted review.   The US Tax Court, located in Washington, DC, is the latest judicial body to contribute to the legitimacy of TAR as a technique for complying with discovery requests. For the second time in the last two-plus years, the US Tax Court has rebuffed the IRS’ arguments against the use and efficacy of TAR in Dynamo Holdings v. Comm’r of Internal Revenue.   Back in 2014, the US Tax Court in Dynamo Holdings I had to decide whether predictive coding was a viable method of responding to discovery requests for electronically-stored information (“ESI”). In that case, the IRS filed a formal request for Dynamo Holdings and other related parties (“Dynamo”) to provide certain ESI. Dynamo was hesitant to comply with the IRS’ formal request due to the time and cost involved in reviewing all of the requested documents, as well as removing privileged information contained in the ESI.   As an alternative to producing all the requested ESI manually, Dynamo requested that the US Tax Court allow them to use TAR, or predictive coding. Predictive coding would allow Dynamo, via computer software, to efficiently and economically identify non-privileged information. Over the IRS’ argument that predictive coding should not be allowed due to it being an ‘unproven technology’, the US Tax Court decided that its use would be acceptable. Loss number one for the IRS.   The Court left it to the parties to make it work between themselves, and left the possibility open for the IRS to file another discovery request if they were unhappy with the results of the predictive coding. And sure enough the IRS was not satisfied with the results, which led to Dynamo Holdings II in July 2016. This forced the US Tax Court to publish another decision regarding TAR, but this time relating to its effectiveness.   After Dynamo Holdings I, Dynamo and the IRS worked together to produce the ESI using predictive coding. However, after much collaboration, the parties ran into problems. The parties created a model to produce the ESI, but the IRS doubted its accuracy and performance. In its view, the software was not delivering all the documents it should have. The parties could not agree, so the IRS filed a motion to compel production of the documents that it thought the predictive coding should have turned up.   This time, the US Tax Court’s task was to evaluate the usefulness of the predictive coding. It held that the mere fact that a responding party uses predictive coding does not result in holding TAR to a higher standard than manual review. The use of TAR does not require any more than manual review in order to be considered a complete response.   Overall, the US Tax Court held that Dynamo satisfied its obligation in responding to the IRS’ request by producing any and all documents that the predictive coding deemed relevant. Loss number two for the IRS.   From the Dynamo Holdings cases, it is clear that not only is TAR widely accepted by judicial bodies, but it is given deference. In Dynamo Holdings II, the US Tax Court placed a surprising amount of trust in the predictive coding software. Within the decision, the US Tax Court did not go anywhere near evaluating the predictive coding software itself. The Court’s lack of skepticism was unexpected but perhaps telling as to its level of faith in TAR.   Stephen Daniels, a Seton Hall University School of Law student (Class of 2017), focuses his studies in the area of corporate taxation. He is the Treasurer of the Sports Club, as well as a member of the Corporate Law Society and Tax Law Society. Prior to law school, Mr. Daniels graduated magna cum laude from the Seton Hall University Stillman School of Business, where he earned a B.S. in Business Administration with concentrations in Finance and Management. He also minored in Legal Studies and received a certificate in Leadership Development. After graduating from law school, he will be working in International Tax at KPMG. 

How May The Court Infer Bad Faith Regarding Discovery Compliance?

Author: Eli Crozier Case Citation: Fulton v. Livingston Fin. LLC, 2016 U.S. Dist. LEXIS 96825 (W.D. Wash. July 25, 2016). Employee/Personnel/Employer implicated:   Defense counsel / Hinshaw and Culbertson eLesson Learned:  Because sanctions issued under a court’s inherent power are available if the court specifically finds bad faith or conduct tantamount to bad faith, attorneys should avoid recklessly misrepresenting the law and the facts to the court. Tweet This: Never misstate the law to gain a competitive advantage   While the backdrop of this case concerns a lawsuit and eventual settlement regarding a party’s violation of the Fair Debt Collection Practices Act, it is the actions of Defendant’s attorney that are reprehensible here.  This case involved the imposition sanctions on an attorney for his alleged bad faith in briefing Defendant’s motion to compel discovery. Courts are vested with inherent powers to issue discovery sanctions.  The courts are governed by the control necessarily vested in them to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.  Additionally, a court has the inherent authority to impose sanctions for bad faith, which include a broad range of willful improper conduct.

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Can you be Compensated for Converting e-Discovery Files?

In Bagwe v. Sedgwick Claims Management Services, Inc., the Indian-born Plaintiff sued her former employer under Title VII of the Civil Rights Act, alleging that she had been fired because of her national origin and race.  The United States District Court for the Northern District of Illinois granted the Defendant’s motion for summary judgment and, afterwards, the Defendant filed a Bill of Costs.  The Defendant sought reimbursement for several costs, the most expensive being costs related to e-discovery in the case.  The Defendant made alternative arguments for three different monetary figures that it sought to receive.

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If You Are a Big Dog in a Company Should Make Sure Your Email’s Are Preserved When Put on Notice? Yes, Unless You Want To Be Found Grossly Negligent

In AJ Holdings Grp., LLC v. IP Holdings, LLC, a licensee's failure to ensure that “key players” preserved their e-mails on various accounts, coupled with his failure to implement any uniform or centralized plan to preserve data or even the various devices, demonstrated gross negligence with regard to the deletion of the e-mails. Furthermore, the inference of gross negligence gave rise to the rebuttable presumption that the spoliated documents were relevant to the breach of contract claim at issue. 

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When Are Tweets Admissible As Evidence?

When people warn you about social media posts and their effects on your future, it’s best not to ignore them. For example, tweets exclaiming “GlenPark or get shot!!!” will not aid in the defense or appeal of a guilty verdict in a murder trial. The defendant in Wilson v. State of Indiana learned this e-Lesson the hard way.

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Can Employers Use Social Media Activity to Prove Laziness in the Workplace?

Can an employer on the hook for unpaid overtime request every social media post made by an employee during a three-year period in order to show that the employee was working on her electronic image instead of selling country club memberships? In Artt v. Orange Lake Country Club Realty, Inc., No. 6:14-CV-956-ORL-40, 2015 WL 4911086 (M.D. Fla. Aug. 17, 2015), the United States District Court in the Middle District of Florida held that a request for all of the plaintiff’s social media was over broad, unduly burdensome, and unreasonable. The discovery requests at issue were “(1) All online profiles, postings, messages (including, without limitation, tweets, replies, retweets, direct messages, status updates, wall comments, groups joined, activity streams, and blog entries), photographs, videos, and online communications that you posted on any date between June 19, 2011 and your last day of employment with Orange Lake [and] (2) Any and all information contained in your Facebook, MySpace, Instagram, Linkedln or other social networking account that you posted at any time between 7:00 am and 7:00 pm on any date between June 19, 2011 and your last day of employment with Orange Lake.”

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Who’s Using Your E-mail Address?

What are the requirements for authentication of electronic communications?  Is past-use of an email address enough to authenticate an electronic communication? Or will a court require more? These are a few of the questions answered by the Eastern District of North Carolina in U.S. v. Shah. U.S. v. Shah is a federal criminal prosecution of a former Information Technology Manager at Smart Online, Inc.  The government alleges that, after the defendant stopped working for Smart Online, Inc., he intentionally accessed his former company’s computer network and caused significant damage. During the pretrial proceedings, a dispute arose as to the admissibility of certain evidence.

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    The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.

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