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

Contribute to eLessons Learned

Contribute to eLessons Learned

Interested students may apply for the opportunity to write for e-Lessons Learned by filling out the simple application. Go There

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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Courts May Award Monetary Sanctions Prior to Trial For Spoliation That Occurred Before the Commencement of Litigation

In this breach of contract lawsuit, the plaintiffs alleged that the defendant refused to pay a debt of approximately $380,000 and failed to supply groceries to the plaintiffs’ market. The market was forced to closed down and the plaintiffs disposed of every paper record they possessed for the market, including general ledgers, invoices, sales reports, cancelled checks, company bills, time clock reports, trial balances, balance sheets, and income statements. The plaintiffs also threw out the only computer the market used and they did not retain any of the information contained on that computer. After the commencement of litigation, the defendant filed a motion for sanctions based on spoliation of evidence related to the financial records destroyed by the plaintiffs. The court determined that an adverse inference sanction was warranted based on the plaintiffs’ intentional and bad faith destruction of evidence, and that it would entertain arguments relating to monetary sanctions after the defendant specifically delineated the time and money it spent addressing the discovery and spoliation issues.

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When Can A Party Access Private Facebook Posts From A Previously Deleted Account?

This action arose after a truck driver’s alleged negligence resulted in a fatal motorcycle accident. Plaintiff, as widow and “tutrix” of the deceased’s minor child, sought the truck-driver Defendant’s social media information through discovery and limited her request to four months following the date of the accident. 

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  • Recent Praise

    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.

    Robert Ambrogi

    Legal Tech Blogger and creator of LawSites

    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg

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