e-Lessons Learned

This case is a civil rights action brought by more than thirty Latino plaintiffs who allege that the Immigration and Customs Enforcement Division of the United States Department of Homeland Security and certain of its employees subjected them to unlawful, unwarranted searches of their homes in violation of the Fourth Amendment. The plaintiffs in this case had been ordered to leave the country, however, they remained in the US as fugitive aliens. This opinion arose because counsel failed to discuss the form of production for electronic documents early in the case, and the Court was forced to resolve several issues concerning the discoverability of metadata.

During a Rule 26(f) discovery conference, the parties agreed that discovery would proceed and that the parties would serve their first requests for the production of documents by February 15, 2008. There was no discussion of metadata at this conference. On February 15, the Plaintiffs served their first request for the production of documents, but their request did not specify the form in which they sought to have electronically stored information (“ESI”) produced. This request did not mention metadata either.

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Earlier we reported that a New Jersey state trial court found that a former employee waived the attorney-client privilege when she decided to use company time, equipment, and resources to communicate with her lawyer (see Stengart v. Loving Care). Recently, an appellate court reversed that ruling and framed the issue “whether workplace regulations converted an employee’s emails with her attorney” sent through the employee’s personal, password-protected, web-based email account, but via her employer’s computer “into the employer’s property.”

Plaintiff had argued that the company failed to demonstrate that it had ever adopted or distributed the policy in question, that she was unaware that the policy applied to her, and even if the policy did exist, the company had not previously enforced it. The company argued that it had disseminated the policy, and that the policy did apply to the plaintiff. The appellate court determined that issues of material fact existed as to whether the policy at issue was in place and disseminated at the time of plaintiff’s employment and as to whether the policy applied to plaintiff; and that these issues could not be resolved by the trial judge without a hearing on the matter.

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When last we left our wily defendants, Gary Reynolds and Usenet.com had just been sanctioned for spoliation of evidence requested by the plaintiffs on numerous occasions. As an explanation for their failure to produce the evidence, Gary Reynolds had argued, in part, that relevant data had “expired off the system through normal system operational attrition.” That is, according to Reynolds, the destruction of data pertinent to their case was not a willful attempt to prevent the plaintiffs from obtaining the data. It was nothing more than the inevitable consequence of the limited storage space on his company’s computers. Continue reading »

Background

In Zubulake I, Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003), Laura Zubulake was seeking evidence stored on UBS’s backup tapes. Retrieval of the evidence was going to be costly and time-consuming. The dispute in Zubulake I centered on which party should pay for the costs incurred in restoring and producing these backup tapes.

As part of the preliminary determination, the court ordered the UBS to produce, at its own expense, all requested emails existing on its optical disks, active servers, and five backup tapes as selected by the plaintiff. The court determined that only after the contents of the backup tapes were reviewed and the defendant’s costs were quantified, the court would conduct the appropriate cost-shifting analysis using a seven factor test.The seven factors elucidated in Zubulake I (in descending order of importance) included:

(1) the extent to which the request is specifically tailored to discover relevant information;

(2) the availability of such information from other sources;

(3) the total cost of production compared to the amount in controversy;

(4) the total cost of production compared to the resources available to each party;

(5) the relative ability of each party to control costs and its incentive to do so;

(6) the importance of the issue at stake in the litigation and;

(7) the relative benefits to the parties of obtaining the information.

Enter Zubulake III
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Often times, the posts on this blog talk about a specific lesson to be learned related specifically to e-discovery rules, practice, and procedure. It can be easy to forget that in many cases, the e-discovery part of the litigation is not the end all and be all of the case, but it rather is interrelated with other substantive areas of law. This was especially true in the Zubulake v. UBS Warburg LLC opinion cited above, one of the many in the seminal Zubulake case.

In this 2003 Zubulake v. UBS Warburg LLC opinion, the plaintiff, Laura Zubulake, moved for an order permitting her to release the transcript of Christopher Behny’s deposition to securities regulators. Behny was the Manager of Global Messaging for UBS. The Southern District of New York had previously ordered UBS to produce an individual knowledgeable about UBS’s email retention and retrieval policies. After UBS produced Behny for a deposition, Behny testified on the structure of UBS’s backup system, its backup tape destruction/retention policy, and the feasibility and estimated cost of restoring the data that Zubulake requested. Continue reading »

For those of you that have been living under an e-discovery rock, and therefore have never heard of Zubulake, please continue reading.

The Zubulake decisions in 2003 through 2004 shook the world of e-discovery. Litigators, law professors, and all kinds of pundits, tuned in and took notice: U.S. District Judge Shira Scheindlin, one of the most brilliant trial judges on the bench today, and unfortunately for UBS, an e-discovery expert threw the gavel at UBS on this one. Zubulake walked away from this case with close to $30 million and UBS was left with a deep hole and lots of sanctions.

But we are skipping ahead in our saga. The case started as a common gender discrimination suit brought by Zubulake against her former employer, UBS. Continue reading »

From the second we stepped foot in law school we learned that the attorney-client privilege was sacrosanct. While by no means absolute, we knew it was pretty hard to gain access to the communications between an attorney and client. Waiver just became a little more likely in New Jersey. A state trial court decision underscores the reality that email communication is too often treated informally and we as attorneys can no longer assume a client’s “personal” email account is truly personal. For while the account itself may be, the means by which the message was sent, may not.

Recently, a New Jersey trial court had occasion to determine whether an employee’s use of her employer’s computer and server to communicate with her lawyer waived the attorney-client privilege. In Stengart v. Loving Care Agency, Inc., docket no. BER-L-858-08, the court held that it did; and the ruling highlights for employers the importance of having a detailed employee handbook and technology system protocol in place; and for lawyers the importance of making sure that communications from clients come by way of truly personal means.

Click here for full article.

Prior to December 1, 2006, the Federal Rules of Civil Procedure did not include any reference to electronic documents or electronically stored data. However, when Playboy discovered that one of its Playmates was deleting relevant emails relating to a pending litigation, it sought to use the discovery procedures to forensically analyze the Playmate’s hard drive. Always an innovator, and on the cutting edge of electronic media exploration, Playboy lead the charge that ultimately resulted in countless electronic discovery cases and the 2006 amendments to the Federal Rules of Civil Procedure.

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Want to read employees’ personal Yahoo emails? Then tell them! (in Writing, of course)

The use of a personal e-mail account on an employer-issued computer presents challenges for both employers and employees. An employee who uses a web-based e-mail service to communicate with his lawyer does not waive attorney-client privilege in those emails just because they are automatically (and unbeknownst to him) copied to his company-owned laptop computer when he views them.

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Sending personal e-mails from work might be less personal than you think.

The bankruptcy court for the Southern District of New York concluded in this case that the attorney-client privilege does not apply to a client’s communications with his personal attorney when (1) the client used his employer’s e-mail system to send the communications, and (2) the client could not reasonably have expected the communications to remain private. However, the court denied the trustee’s motion for summary judgment because it could not find as a matter of law that the debtor’s employees in this case held an unreasonable expectation of privacy when using their company’s e-mail system for personal matters.

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