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Judge Sides with Both Parties in Form of Production Dispute – eDiscovery Case Law
 

The opinion in Kwasniewski v. Sanofi-Aventis U.S. LLC, No. 2:12-cv-00515-GMN-NJK (D. Nev. June 28, 2013) suggests that producing parties can satisfy their obligation to produce documents in an organized manner by offering a table of contents, rendering text searchable, indicating which data responds to which request, and including certain metadata, such as Bates numbers.

During discovery, defendant Sanofi-Aventis responded to the plaintiffs’ discovery requests by producing a large number of documents. The plaintiffs objected, arguing that the response was improper because Sanofi-Aventis failed to provide an index, to indicate which documents corresponded to which request, and to Bates stamp the documents. Sanofi-Aventis argued that it complied with the discovery rules and produced documents as they were “kept in the usual course of business.” Moreover, it had produced the documents in a text-searchable format and included an index. The court denied the plaintiffs’ motion and ordered the parties “to meet and confer in good faith by discussing the merits of each argument in an effort to resolve the dispute without further Court involvement.”

The parties could not resolve the dispute on their own. Subsequently, the plaintiffs re-filed their motion to compel, asking Sanofi-Aventis to organize and Bates number its production by request. Sanofi-Aventis again asserted that it had produced the information properly.

The court began its analysis by quoting the Federal Rule of Civil Procedure 34. To prevent parties from “‘obscuring the significance of documents by giving some structure to the production,’” Fed. R. Civ. P. 34(b)(2)(E)(i)requires parties to choose either to “produce documents as they are kept in the usual course of business” or to “organize and label them to correspond to the categories in the request . . .” The court noted that “[p]roducing parties should not raise ‘unnecessary obstacles for the requesting party’ in the production of ESI.” As a result, “the production of ESI must be rationally organized to enable the parties to determine if responsive documents have been produced.”

Sanofi-Aventis responded that its production was organized and searchable; instead, the problem is that the plaintiffs had “not made a reasonable effort to determine which documents are responsive to their requests.”

The court found that Sanofi-Aventis had complied with Rule 34 by providing a table of contents that described “the types of documents and the volume and page number where those documents are located” and noted that “each volume number is readily identifiable via cover sheet.” Furthermore, Sanofi-Aventis “provided metadata for all the documents, which allows the Plaintiffs to identify the documents by bates range, file path, and document title.” Finally, all but 33 of the produced documents were text-searchable. Accordingly, the court concluded, “if the Plaintiffs make a reasonable effort, they should be able to obtain the documents responsive to their requests.”

Even so, the court found that Sanofi-Aventis’s responses were “deficient in that they create unnecessary obstacles for the plaintiffs”: they “should not have to guess which requests were responded to and which were not.” Therefore, the court granted the motion to the extent the plaintiffs sought “to determine whether the documents produced by Sanofi-Aventis were actually responsive to the Plaintiffs’ discovery requests.”

So, what do you think?  Was that a proper form of production?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be celebrating Labor Day by…not laboring, so we’ll be back with a new post on Tuesday, September 3.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Scheindlin Reverses Magistrate Judge Ruling, Orders Sanction for Spoliation of Data – eDiscovery Case Law

If you’re hoping to get away with failing to preserve data in eDiscovery, you might want to think again if your case appears in the docket for the Southern District of New York with Judge Shira Scheindlin presiding.

As reported in by Victor Li in Law Technology News, (Scheindlin Not Charmed When Revisiting Spoliation a Third Time), Judge Scheindlin, who issued two of the most famous rulings with regard to eDiscovery sanctions for spoliation of data – Zubulake v. UBS Warburg and Pension Committee of the Montreal Pension Plan v. Banc of America Securities – sanctioned Sekisui America Corp. and Sekisui Medical Co. with an adverse inference jury instruction for deleting emails in its ongoing breach of contract case, as well as an award of “reasonable costs, including attorneys’ fees, associated with bringing this motion”.

Last year, the plaintiffs sued two former executives, including CEO Richard Hart of America Diagnostica, Inc. (ADI), a medical diagnostic products manufacturer acquired by Sekisui in 2009, for breach of contract.  While the plaintiffs informed the defendants in October 2010 that they intended to sue, they did not impose a litigation hold on their own data until May 2012. According to court documents, during the interim, thousands of emails were deleted in order to free up server space, including Richard Hart’s entire email folder and that of another ADI employee (Leigh Ayres).

U.S. Magistrate Judge Frank Maas of the Southern District of New York, while finding that the actions could constitute gross negligence by the plaintiffs, recommended against sanctions because:

  • There was no showing of bad faith, and;
  • The defendants could not prove that the emails would have been beneficial to them, or prove that they were prejudiced by the deletion of the emails.

The defendants appealed.  Judge Scheindlin reversed the ruling by Magistrate Judge Maas, finding that “the destruction of Hart’s and Ayres’ ESI was willful and that prejudice is therefore presumed” and the “Magistrate Judge’s Decision denying the Harts’ motion for sanctions was therefore ‘clearly erroneous.’”

With regard to the defendants proving whether the deleted emails would have been beneficial to them, Judge Scheindlin stated “When evidence is destroyed intentionally, such destruction is sufficient evidence from which to conclude that the missing evidence was unfavorable to that party.  As such, once willfulness is established, no burden is imposed on the innocent party to point to now-destroyed evidence which is no longer available because the other party destroyed it.”

Judge Scheindlin also found fault with the proposed amendment to Rule 37(e) to the Federal Rules of Civil Procedure, which would limit the imposition of eDiscovery sanctions for spoliation to instances where the destruction of evidence caused substantial prejudice and was willful or in bad faith, stating “I do not agree that the burden to prove prejudice from missing evidence lost as a result of willful or intentional misconduct should fall on the innocent party.  Furthermore, imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior.”

As a result, Judge Scheindlin awarded the defendants’ request for an adverse inference jury instruction and also awarded “reasonable costs, including attorneys’ fees, associated with bringing this motion”.  To see the full opinion order (via Law Technology News), click here.

So, what do you think?  Should sanctions have been awarded?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Permissive Adverse Inference Instruction Upheld on Appeal – eDiscovery Case Law

In Mali v. Federal Insurance Co., Nos. 11-5413-cv, 12-0174-cv (XAP) (2d Cir. June 13, 2013), the Second Circuit explained the distinctions between two types of adverse inference instructions: a sanction for misconduct versus an explanatory instruction that details the jury’s fact-finding abilities. Because the lower court opted to give a permissive adverse inference instruction, which is not a punishment, the court did not err by not requiring the defendant to show that the plaintiffs acted with a culpable state of mind.

After a fire destroyed a barn converted into a residence, the plaintiffs sought to recover $1.3 to $1.5 million from their insurance policy. The insurance company made three payments before becoming skeptical of the plaintiffs’ claim. In particular, the company balked at the plaintiffs’ statement that they had high-end amenities, such as four refrigerators and copper gutters, and their sketch of the barn’s layout, which showed fourteen rooms, a second floor with four rooms and a bathroom, and four skylights. During discovery, the plaintiffs claimed they had no photographs of the barn, but at trial, an appraiser testified that the plaintiffs had shown her photographs of items in the barn and of the barn, which she testified only had one floor, not two as the plaintiffs claimed.

The defendants asked the court to impose an adverse inference instruction on the plaintiffs as a sanction for destroying the photographic evidence. Over the plaintiffs’ objection, the court instructed the jury that it could draw an adverse inference from the plaintiffs’ failure to produce the photographs. The jury agreed with the defendant and found the plaintiffs had submitted fraudulent claims that forfeited their insurance coverage.

On appeal, the plaintiffs argued that the jury’s verdict should be vacated and that a new trial was required because the court did not make findings to justify this sanction. However, the appellate court ruled that the plaintiffs’ argument was “based on a faulty premise” because the trial court “did not impose a sanction on the Plaintiffs.” Therefore, no findings were required. It also found the plaintiffs’ reliance on a prior Second Circuit decision, Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 107 (2d Cir. 2002), where the court ruled that a trial court “must find facts that justify” an adverse inference instruction based on spoliation, inapposite. In Residential Funding, the plaintiff failed to meet its discovery obligations because it did not produce e-mails or backup tapes. The court refused to impose the defendant’s requested sanction, which was an instruction to the jury that it “‘should presume the e-mails . . . which have not been produced, would have disproved [Residential]’s theory of the case,’” because the defendant had not provided facts sufficient to support the sanction.

Here, the Second Circuit explained the distinction between the two types of adverse inferences in these cases: (1) one that punishes “misconduct that occurred outside the presence of the jury during the pretrial discovery proceedings, often consisting of a party’s destruction of, or failure to produce, evidence properly demanded by the opposing party,” and (2) one that “simply explains to the jury, as an example of the reasoning process known in law as circumstantial evidence, that a jury’s finding of certain facts may (but need not) support a further finding that other facts are true.” The court ruled that the latter instruction “is not a punishment” but instead is “an explanation to the jury of its fact-finding powers.”

The Mali court found the trial court’s instructions did not “direct the jury to accept any fact as true” or “instruct the jury to draw any inference against the Plaintiffs.” Because “the court left the jury in full control of all fact finding,” it fell within the explanatory classification of instructions.

So, what do you think?  Was the permissive adverse inference instruction warranted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Default Judgment Sanction Upheld on Appeal – eDiscovery Case Law

In Stooksbury v. Ross, Nos. 12-5739/12-6042/12-6230, No. 13a0575n.06 (6th Cir. June 13, 2013), the Sixth Circuit upheld the entry of default judgment as a sanction against defendants that repeatedly failed to comply with discovery obligations, including producing a “document dump” of tens of thousands of pages of nonresponsive information that prejudiced the plaintiffs.

At trial in this RICO action, the court found the defendants engaged in “contumacious conduct” and intentionally delayed discovery. Although the defendants had provided a document “dump” of 40,000 pages of documents in response to document requests, the information was not responsive to the requests, lacked important financial information, was not Bates stamped, and prejudiced the plaintiff. The plaintiffs asked the court to sanction the defendants, and the magistrate judge recommended default judgment in favor of the plaintiff. The judge found that the defendant had a “‘total lack of forthrightness’” in refusing to comply and explain their noncompliance; this conduct “‘amount[ed] to bad faith and a willful decision not to cooperate in discovery.’” The district court subsequently adopted the magistrate judge’s findings but awarded costs and fees instead of a default judgment. The court also afforded the defendants 10 more days to comply with the discovery order, warning them that noncompliance could result in further sanctions.

Despite the additional time and warning, the defendants still failed to provide responsive discovery: “[T]hey included boilerplate objections and failed to provide basic accounting documents or Bates stamp references for the earlier document dump.” As a result, when the plaintiff renewed his motion for a default judgment, the court granted it. The district court relied on four findings: “(1) the defendants intentionally failed to comply with the discovery orders, (2) they failed to heed the court’s warning, (3) the plaintiff suffered prejudice as a result of their noncompliance, and (4) less drastic sanctions would not be effective.” The defendants later objected, but the court refused to reconsider its motion, finding there was no evidence that the defendants’ actions stemmed from excusable neglect.

The defendants appealed this decision. The court reviewed the district court’s four findings for an abuse of discretion. The Sixth Circuit approved the lower court’s decision for the following reasons:

  • First, the defendants met the standard for “willful conduct and bad faith” because they “lacked forthrightness, failed to directly respond to the Court’s inquiries about the discovery matters, offered no explanation for their lack of compliance, and demonstrated ‘bad faith and a willful decision not to cooperate in discovery.’”
  • Second, the plaintiff was prejudiced because the dispute had continued for more than a year, despite judicial intervention and two continuances. Further, the “discovery abuses imposed excessive costs on Plaintiff, who had to sort through the document dump, and undermined Plaintiff’s proof on the issue of liability.”
  • Third, the defendants were fairly warned about the possibility of sanctions, including a default judgment, by the magistrate judge and district court.
  • Fourth, the court first issued a less severe sanction and warned the defendants of the possibility of the default if they did not meet their discovery obligations. Nevertheless, the defendants “forced the district court’s hand in ordering the default judgment.”

Accordingly, the court ruled there was no abuse of discretion.

So, what do you think?  Was the default judgment sanction warranted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Needs More Than “Mere Hope” to Discover Defendant’s Personal Info – eDiscovery Case Law

We’ve seen several cases where social media or personal data was requested – with some requests granted (including this one, this one, this one, this one and this one) and other requests denied (including this one, this one, this one and this one).  Here is another recent case where the request was denied.

In Salvato v. Miley, No. 5:12-CV-635-Oc-10PRL (M.D. Fla. June 11, 2013), a wrongful death action, Florida Magistrate Judge Philip R. Lammens denied the plaintiff’s motion to compel the defendant’s responses to discovery requests “based on Plaintiff’s very limited showing as to the relevance of the requested discovery and the broadly drafted discovery requests”.

In this case, the plaintiff sued two police officers for causing their son’s death by using excessive force and failing to provide medical treatment. During discovery, the plaintiff filed a motion to compel one officer’s responses to the discovery requests. The interrogatories in question sought information about the defendant’s cell phone numbers, e-mail addresses, social media accounts, and list-serve or message board membership. The contested requests for production sought cell phone records, including all text messages; e-mails; social media messages and other communications; and comments made on websites or message boards that related to the allegations in the plaintiff’s complaint. The defendant objected, arguing that the requests sought confidential information and invaded his privacy, sought irrelevant information and amounted to a fishing expedition, and were intended to annoy, embarrass, and oppress him.

Judge Lammens found the plaintiff “failed to make a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” The plaintiff’s argument in support of the relevancy of the requests was that they seek “‘information about statements that Defendant Brown made about the incident at issue in this case, which could include admissions against interest, and could certainly lead to the discovery of admissible evidence.’” Judge Lammens ruled that the “mere hope” that the texts, e-mails, and other communications might contain an admission is not enough to allow the plaintiff “open access to [the defendant’s] private communications with third parties.” Accordingly, the judge rejected the plaintiff’s attempt “to conduct ‘a fishing expedition’” because he did “‘not have a generalized right to rummage at will through information that Plaintiff has limited from public view.’”

So, what do you think?  Should the motion to compel have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Five eDiscovery Trailblazing Judges – eDiscovery Trends

Yesterday, we discussed an article in The American Lawyer by Alan Cohen about six people who deserve special consideration as true trailblazers in eDiscovery.  Today, let’s take a look at five trailblazing judges in eDiscovery.

In Lisa Holton’s article (E-Discovery: A Front-Row Seat), also in The American Lawyer, she discusses how “judges…saw how uninformed many attorneys and their clients were about technology and how resistant they were to a series of new rules.”  She profiles five “pioneers” that “have not only set the stage in procedure and case law, but have become teachers, writers, activists, and ongoing critics of this rapidly changing industry.”  Here they are:

Shira Scheindlin, Judge, U.S. District Court for the Southern District of New York: Perhaps the most famous judge of the most famous case, Zubulake v. UBS Warburg, (which addressed legal holds on electronic documents) Judge Scheindlin has had a dramatic effect on shaping the industry.  She also proceeded to address the levels of culpability — negligence, gross negligence, and willfulness in the electronic discovery context in her famous Pension Committee opinion.  As Holton notes in her article, “Scheindlin’s involvement in the ongoing e-discovery pilot project dealing with complex litigation in the Southern District is an example of her continuing work to shape and improve e-discovery processes. And she’s been vocal on the issue of proportionality—the need to balance the total cost of electronic document discovery with the value of the case—from the start.”  She has also been a busy speaker on eDiscovery topics and co-published a book back in 2009 called Electronic Discovery and Digital Evidence in a Nutshell.

Lee Rosenthal, Judge, U.S. District Court for the Southern District of Texas: After being elevated to chairman of the Judicial Conference Advisory Committee on Federal Rules of Civil Procedure in 2003, Judge Rosenthal led the effort to create and adopt the 2006 amendments to the rules that addressed – for the first time – how electronically stored information (ESI) should be handled in civil litigation.  These Federal Rules have been instrumental in providing guidance to attorneys and judges on how to address issues with ESI, and the article provides some interesting “backstory” regarding that process.

Andrew Peck, U.S. Magistrate Judge, Southern District of New York: Judge Peck has been a leader in the effort to use technology to assist with the searching and review process and his February 2012 decision in Da Silva Moore v. Publicis Groupe & MSL Group is considered by many to be the first ruling approving computer-assisted review (click here for the considerable dispute that has followed) and his article Search, Forward is one of the few judicial articles advocating the use of computer-assisted review, which has become perhaps the hottest topic in eDiscovery today.

Paul Grimm, Judge, U.S. District Court for the District of Maryland: Judge Grimm has been a key advocate for proportionality and cooperation in the eDiscovery process.  His ruling in 2008’s Mancia v. Mayflower Textile Services Co. contained a detailed examination of Rule 26(g) of the Federal Rules of Civil Procedure, which covers eDiscovery duty to disclose requirements, and other law calling for cooperation among parties in discovery.  His ruling of severe sanctions in Victor Stanley, Inc. v. Creative Pipe, Inc. was also the very first case this blog covered on our very first day.  🙂

John Facciola, U.S. Magistrate Judge, U.S. District Court for the District of Columbia: Judge Facciola’s key eDiscovery opinions include: Citizens for Responsibility & Ethics in Washington v. Executive Office of the President (which forced preservation of digital media in government); United States v. O’Keefe (which set guidelines for keyword challenges); and Equity Analytics v. Lundin (which set guidelines for challenges or defenses of search methodology).  Also, In Taydon v. Greyhound Lines, Inc., he laid down the law to the parties in the case requiring cooperation on eDiscovery issues, stating “there is a new sheriff in town—not Gary Cooper, but me.”

A link to Lisa’s article is here.  So, what do you think?  How have these judicial trailblazers influenced you?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Compels Discovery of Plaintiff’s Facebook Posts as Relevant – eDiscovery Case Law

In Moore v. Miller, No.: 10-cv-651-JLK, 2013 (D. Colo. June 6, 2013), Colorado Senior District Judge John L. Kane ruled (over the plaintiff’s privacy objections) that the plaintiff’s Facebook posts and activity log must be produced because they related to his claims of physical injury and emotional distress and because the plaintiff put his posts directly at issue by discussing the incident giving rise to the lawsuit online.

In this case, the defendants filed a motion to enforce the court’s order to compel the plaintiff’s production of “writings related to his arrest, his tax records, and his employment records.” As part of those writings, the defendants asked for his Facebook records and activity log and documents he posted on his websites. The defendants claimed that the plaintiff did not comply because he only partially produced writings, including “‘an incomplete and highly-redacted printout of Plaintiff’s Facebook wall posts’” and he did not produce an activity log.

The plaintiff relied on his interpretation of “about his arrest” to narrow the scope of the order compelling production. The court remarked that narrowing the scope to this extent would “exclude writings relevant to the arrest such as writings relating to Mr. Moore’s bias, emotional and physical states before and after the arrest and his alleged physical and mental injuries.” Moreover, the court noted that the defendants’ request for Facebook information extended to “all of his missing Facebook posts” and the activity log.

The plaintiff argued that this expanded scope sought irrelevant evidence and would invade his privacy. But the court found the plaintiff’s allegations of physical injury and emotional distress warranted a more in-depth review of his social media account. His “Facebook activity is relevant to his claims of emotional pain and suffering (for which he claims $750,000 in damages) as well as his claims of physical pain ($750,000) and humiliation ($500,000).” Moreover, the plaintiff “reputedly has chosen to share his version of events online often and in many different forums, including detailed and specific descriptions of what he alleges happened to him on March 25, 2008, as well as the injuries he allegedly suffers to this day.” {emphasis added}

Although the plaintiff requested that the data be reviewed in camera, the court found its protective order would protect the plaintiff’s privacy.

The court also granted the defendants’ motion for attorneys’ fees related to the motion, noting “how unfortunate it is that the parties’ differing interpretations about the scope of ordered discovery spawned a chain of hostile emails and ultimately the instant motion. Where the nature or scope of an Order is contested, the best course of action is for the disputing parties jointly to file a motion for clarification.” In addition, the motion sought the defendant’s current address, tax returns, and employment history: “No party should have to resort to motion practice to obtain information as elemental as a party opponent’s address.”

So, what do you think?  Was the judge right to allow discovery of the plaintiff’s Facebook information?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Spoliation Sanctions Can Apply to Audio Files Too – eDiscovery Case Law

In Hart v. Dillon Cos., 2013 U.S. Dist. (D. Colo. 2013), Colorado Magistrate Judge David L. West granted the plaintiff’s Motion for Sanctions for Spoliation of Evidence for failing to preserve a tape recorded interview with the plaintiff and set a hearing and oral argument as to what sanctions should be imposed for October.

As noted in the opinion, here are the facts:

  • On August 23, 2011, the plaintiff was terminated by the defendant for allegedly giving herself the incorrect pay rate while working in the bookkeeping department. As part of the defendant’s investigation, a loss prevention specialist for the defendant secretly tape recorded an interview with the plaintiff on August 6 which in part led to the termination of the plaintiff.
  • On November 1, 2011, the plaintiff filed an E.E.O.C. charge of discrimination.
  • On November 7, 2011, the defendant denied the plaintiff’s request for arbitration knowing the plaintiff would probably litigate the matter.
  • Sometime between January and March of 2012, the loss prevention specialist inadvertently taped over or erased his interview with the plaintiff.
  • On January 30, 2012, the plaintiff filed her Complaint.
  • On March 1, 2012, the defendant issued a litigation hold on all related documentation. Before the contents of the tape were destroyed, Pollard prepared a “case narrative” in writing which the defendant asserts is substantially accurate and the plaintiff claims does not include exculpatory information and the tenor of the interview.

As noted in the opinion, there is a three part test to determine spoliation of evidence:

1. Is the evidence relevant to an issue at trial?

2. Did the party have a duty to preserve the evidence because it knew or should have known, that litigation was imminent?

3. Was the other party prejudiced by the destruction of the evidence?

Judge West found that the interview was relevant as the defendant relied on the interview as part of the decision to terminate the plaintiff.  He also found that the defendant had a duty to preserve the data as far back as November 7, 2011, when the plaintiff’s request for arbitration was denied.  And, he found that the plaintiff was prejudiced by destruction of the audio, noting as many as 21 discrepancies between the defendant’s case narrative and the plaintiff’s stated recollection in her deposition and affidavit.  As he noted:

“Defendant was clearly four (4) months late in issuing a “litigation hold” concerning the tape in Pollard’s possession, and the Court finds Defendant is highly culpable for the failure to preserve the taped interview.

A failure to preserve evidence may be negligent, grossly negligent, or willful. After the duty to preserve attaches, the failure to collect taped recording from a key player is grossly negligent or willful behavior.”

Thus, Judge West granted the plaintiff’s Motion for Sanctions for Spoliation of Evidence and ordered the hearing to determine the sanctions to be applied to the defendant.

So, what do you think?  Did the judge make the right decision?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Printed Copies of Documents Not Enough, Spoliation Sanctions Upheld for Discarding Computer – eDiscovery Case Law

On May 30, the Appellate Division of the Supreme Court of New York, First Department upheld a spoliation sanction against a plaintiff that failed to preserve electronic files and discarded his computer containing those files.

As reported in IT-Lex.org (Gross Negligence + Lack Of Litigation Hold = Spoliation Sanctions), In Harry Weiss, Inc. v. Moskowitz, a dispute involving diamond dealers and brokers, the Appellate Division upheld the defendants’ motion for spoliation sanctions to the extent of precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims, unanimously affirmed, with costs.  As noted in the transcript:

“More than two years into this litigation, plaintiff’s bookkeeper revealed at his deposition for the first time that certain electronic files that were created to track defendants’ commissions were either “lost” or “deleted” at the end of 2007 and 2008, after a copy of the file had been printed. The bookkeeper further testified that he created and kept all of plaintiff’s records on one computer, which had been in use for the last ten years. A month later, when defendants’ attorney sought to forensically examine the computer to determine if any of the deleted files could be restored, plaintiff’s bookkeeper claimed, for the first time, that the computer was “broken” and had been thrown away in late 2009 or early 2010, after the commencement of this action. Thereafter, the bookkeeper testified that numerous documents supporting plaintiff’s claim that defendants were not entitled to commissions could not be produced because they were stored only on the discarded computer.”

The plaintiff was put on notice of its obligation to “preserve all relevant records, electronic or otherwise,” at the very latest, in July 2009, when it received defendants’ answer asserting counterclaims for commissions, so the disposition of the computer was spoliation of that data.

The plaintiff claimed that disposal of the computer did not cause defendants any prejudice because many of the files were printed prior to its disposal, but the court rejected that argument, noting that “converting the files from their native format to hard-copy form would have resulted in the loss of discoverable metadata”. “In addition, by discarding the computer after its duty to preserve had attached without giving notice to defendants, plaintiff deprived defendants of the opportunity to have their own expert examine the computer to determine if the deleted files could be restored”.

So, what do you think?  Was the sanction justified?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Is it OK for an eDiscovery Vendor to Work on Both Sides of a Case? – eDiscovery Best Practices

A few weeks ago, we covered a case where the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software was dismissed (without prejudice) after the defendants stated that they were prepared to meet and confer with the plaintiffs and their non-disqualified ESI consultants regarding the defendants’ predictive coding process.  The sticking point may be the ESI consultant in dispute.

As reported by Victor Li in Law Technology News (Judge Refuses to Disqualify EDD Vendor for Playing Both Sides), the defendant in Gordon v. Kaleida Health is taking its fight to the U.S. District Court to have eDiscovery vendor D4 Discovery disqualified from working on the case on behalf of the plaintiffs.  In their initial objection on June 5 and their July 12 filing, Kaleida Health claimed that New York Magistrate Judge Leslie Foschio erred and that D4 should have been disqualified.  As the article notes, “Kaleida’s attorneys at Nixon Peabody had decided to use predictive coding to go through its gigantic cache of 300,000 to 400,000 emails, and had hired D4 (in 2010) to provide scanning and coding services. In 2011, D4 entered into a contract to provide e-discovery consulting services to the plaintiffs. Despite D4’s representation that its consultants had not been involved in the project for Nixon Peabody, Kaleida and Nixon Peabody objected.”

In his ruling, Foschio ruled that there was no conflict of interest for reasons including:

  • D4’s involvement with Kaleida was limited to scanning and coding documents;
  • Kaleida failed to show that D4 had access to any confidential information;
  • D4’s duties to Kaleida were “a routine clerical function” (similar to photocopying documents) while services provided to the plaintiffs were “requiring expert knowledge or skills”;
  • D4 had only been hired to code objective information into assigned fields and was not asked to identify substantive case issues or make subjective decisions about the documents;
  • D4 had actually subcontracted its work for Kaleida to Infovision 21.

Conversely, Kaleida and its attorneys at Nixon Peabody argued that there was a confidential relationship with D4 and that D4 had access to sensitive information, arguing that the plaintiffs’ attorneys at Thomas & Solomon spoke directly to Amir Karahasanovic, the D4 employee who had handled the Kaleida job, violating that confidential relationship.

Li’s article also quotes Electronic Discovery Reference Model (EDRM) co-founder George Socha (a thought leader interviewee on this blog for the past three years), who referenced the EDRM’s Model Code of Conduct (our previous post about it here) as a means to encourage vendors to avoid these types of situations.  In Guideline 9 of Principle 3 (Conflicts of Interest) of the code, it states “Service Providers should not proceed with an engagement where one or more conflicts have been identified until those conflicts have been resolved and the resolution is adequately memorialized to the satisfaction of all parties involved.”

So, what do you think?  Are there some services or situations where it’s acceptable for an eDiscovery provider to work on both sides of a case?  Or should providers only do so if both parties agree?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.