Case Law Archives

Social Tech eDiscovery: Facebook Law Enforcement Policies Revisited

January 25, 2012

One of the very first posts we published on this blog, over 16 months ago, was a post regarding Facebook’s Subpoena Policy, describing and providing a link to Facebook’s Law Enforcement page to request information from Facebook. With numerous cases involving discovery of information on Facebook, (including this one, this one, this one, this one, this one and this one – all just in the past year), it seems appropriate to revisit this page to see if anything has changed.

The first thing that has changed is the link itself. The old link we published 16 months ago no longer takes you to that page – it defaults to the general Facebook help page. So, I had to “go hunting” for the new location for the law enforcement page. It took a few tries, but I did finally find it here. If you prefer your Facebook Law Enforcement information in downloadable document form, the link to the PDF is here.

The page has a lot more information than the old page. Sections include:

US Legal Process Requirements: Notes that Facebook discloses account records solely in accordance with their terms of service and applicable law, including the federal Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712, which requires a valid subpoena, court order or search warrant to compel disclosure of Facebook content.
International Legal Process Requirements: A Mutual Legal Assistance Treaty request or letter rogatory may be required to compel the disclosure of the contents of an account. More information found here.
Account Preservation: Link to form to request preservation of account records for up to 90 days pending receipt of formal legal requests.
Emergency Requests: Email address for a law enforcement official to obtain an emergency request form in cases “involving imminent harm”.
Child Safety Matters: What to do when requests relate to child exploitation or safety concerns.
Data Retention and Availability: Reiteration that Facebook does “not retain data for law enforcement purposes unless we receive a valid preservation request before a user has deleted that content from our service”, with links to 1) how a Facebook user can request their account to be permanently deleted (with no recovery), 2) Facebook’s Statement of Rights and Responsibilities and 3) Facebook’s Data Use Policy.
Form of Requests: Information required with requests for information, including 1) name of the issuing authority, badge/ID number of responsible agent, email address from a law-enforcement domain, and direct contact phone number; 2) email address, user ID number or username of the Facebook profile.
User Consent: Instructions for users who have consented to provide their own information to law enforcement officials using Facebook’s Download Your Information feature (previously featured on this blog here).
Notification: What to do if officials believe that notification would jeopardize an investigation.
Testimony: Facebook’s declaration that they do not provide expert testimony support, but if “a special form of certification is required”, the requestor should attach it to the records request.
Cost Reimbursement: Facebook’s statement that they “may seek reimbursement for costs in responding to requests for information as provided by law”, without specifying what those costs might be (which is different than the specific costs stated in the previous page).
Contact Information: To submit records requests via email, snail mail or fax – but only if you’re a law enforcement officer.

So, what do you think? Have you needed to request information from Facebook for litigation purposes? 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.

eDiscovery Case Law: Appeals Court Decides Spoliation Finding For Not Producing Originals is Bull

January 24, 2012

Including yesterday’s post, this seems to be the week for Third Circuit appeal cases…

In Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan. 4, 2012), the Third Circuit court conceded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information”. However, it found that in this case, the District Court erred in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

During a jury trial of a claim of disability discrimination under New Jersey law, the plaintiff (a former UPS employee) testified about two notes that she received from her doctor and faxed to UPS, regarding her neck and shoulder injury. When UPS challenged the authenticity of those notes and sought to block the admission of the faxed copies, the employee's attorney indicating that the original notes no longer existed. However, the plaintiff testified during examination that she actually still had originals at home. As a result, the District Court declared a mistrial and encouraged the defendant to file a motion for sanctions. The plaintiff produced the original doctor’s notes to the court and after considering defendant’s motion for sanctions, the District Court invoked its authority and ordered the case dismissed with prejudice. Plaintiff appealed.

After carefully examining the record and determining that there was insufficient evidence that the employee intentionally withheld the original notes, the Third Circuit reversed the sanctions, finding doubt whether or not UPS ever properly requested the original documents; and if so, whether plaintiff's counsel ever communicated those requests.

However, the Third Circuit court recognized, in footnote, a “growing concern not implicated in this case”:

“This highlights a growing concern for us that is not directly implicated in this case. As electronic document technology progresses, the concept of an “original” document is becoming more abstract. Moving from the more easily distinguishable photocopy or facsimile to documents created, transmitted and stored in an electronic form means that it will be increasingly difficult to ascertain where the boundary of an objectively reasonable duty to preserve such documents lies. There are—and increasingly will be—circumstances in which the foreseeability of a duty to preserve the information contained in a particular document is distinguishable—under an objective analysis—from the need to preserve that information in its “original” form or format. Indeed, arriving at a common understanding of what an “original” is in this context is challenging enough. Although it does, and always will rest with the courts to preserve the distinction between an objectively foreseeable duty and actual knowledge of such a duty, there is a concomitant obligation that counsel must assume to clearly and precisely articulate the need for parties to search for, maintain, and—where necessary—produce “original” or source documents. This case gives us one more opportunity to highlight our position that clarity in communications from counsel that establish a record of a party's actual knowledge of this duty will ensure that this technology-driven issue does not consume an unduly large portion of the court's attention in future litigation.”

So, what do you think? Should the sanctions have been reversed? Or should the producing party be required to produce originals whether they were clearly requested or not? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Court Dismisses Identify Theft Case Where No Harm Was Proven

January 23, 2012

In the case Reilly v. Ceridian Corp, 11-1738 (3rd Cir. Dec. 12, 2011), the Third Circuit affirmed the district court’s dismissal of a class action against payroll processing company Ceridian for a data breach, finding that the plaintiffs case lacked merit because their alleged injuries were too speculative.

An unknown hacker breached Ceridian’s Powerpay system in December 2009, potentially gaining access to payroll information such as names, birth dates, bank account numbers and Social Security numbers belonging to approximately 27,000 employees at 1,900 companies. Two individual plaintiffs filed suit on behalf of all of the individuals whose information was exposed in the security breach. However, the lawsuit did not allege that the hacker actually accessed, misused or copied the data. Instead, the plaintiffs claim was based on an allegedly increased risk of identity theft, emotional distress and the credit-monitoring costs they incurred.

The U.S. Court of Appeals for the Third Circuit upheld a District Court decision dismissing the case, finding that these asserted injuries were too speculative to give the plaintiffs standing to bring a federal lawsuit and emphasized the need for an injury-in-fact, which must be actual or imminent, not hypothetical.

The court distinguished this case from other cases in the Seventh and Ninth Circuits where plaintiffs bringing claims for data breaches were found to have standing. The Third Circuit judges noted that those other cases involved threatened harms that were much more “imminent” and “certainly impending” due to evidence of improper intent (such as the Ninth Circuit case, where an individual had attempted to open a bank account with a plaintiff’s information following the physical theft of a laptop).

Even though the plaintiffs voluntarily expended time and money to monitor their financial situation, the court concluded:

“Here, no evidence suggests that the data has been—or will ever be—misused”…The present test is actuality, not hypothetical speculations concerning the possibility of future injury. Appellants’ allegations of an increased risk of identity theft resulting from a security breach are therefore insufficient to secure standing.”

So, what do you think? Should the case have been dismissed? Or should a company be held responsible for security breaches regardless what is done with the data that’s breached? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Court Denies Plaintiff Request For Additional Searches for Acronyms

January 18, 2012

In the case In Re: National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation, MDL No. 2121 (Dec. 19, 2011), U.S. Magistrate Judge Louisa S. Porter considered a motion by the plaintiffs seeking to compel the defendants to run document searches containing abbreviations and acronyms identified during discovery. Ruling that the plaintiffs had “ample opportunity” to obtain this discovery earlier in the case, the court denied the motion.

The defendants notified the plaintiffs that they intended to use keyword searches to find relevant documents to plaintiffs’ discovery requests and asked the plaintiffs to provide search terms. However, the plaintiffs indicated that they could not provide the terms, lacking sufficient information at that point to construct meaningful searches. So, the defendants created their own list of search terms, which they then reviewed with the plaintiffs, who protested that the terms were too restrictive and were unlikely to capture some highly relevant documents. As a result, both sides sat down and negotiated a list of agreed-upon search terms, including several terms specifically targeted to capturing defendant-to-defendant communications.

The defendants began to produce documents based on the agreed-upon terms. Through review of those produced documents, the plaintiffs discovered the frequent use of abbreviations and acronyms and filed a motion seeking to compel the defendants to run document searches containing these abbreviations and acronyms.

While the court noted that keyword searching should be “a cooperative and informed process” and emphasized the importance of “a full and transparent discussion among counsel of the search terminology”, the court chastised the plaintiffs, noting:

“Here, the Court finds Plaintiffs had ample opportunity to obtain discovery regarding abbreviations and acronyms of Defendant companies, and the burden or expense to Defendants in having to comply with Plaintiffs’ request regarding abbreviations and acronyms outweighs its likely benefit. … First, Plaintiffs had two separate opportunities to suggest that Defendants search for abbreviations and acronyms of the Defendant companies; initially, before Defendant’s produced documents; and second, during negotiations between the parties on agreed-upon expanded search terms. In the spirit of the conclusions made at the Sedona Conference, and in light of the transparent discussion among counsel of the search terminology and subsequent agreement on the search method, the Court finds it unreasonable for Defendant to re-search documents they have already searched and produced.

Second, after meeting and conferring with Plaintiffs, and relying on their agreement with Plaintiffs regarding search terms, Defendants have already searched and produced a significant number of documents, thereby incurring significant expenses during this limited discovery period. Further, as articulated by Defendants, the new search terms Plaintiffs have proposed would require some Defendants to review tens of thousands of additional documents that would likely yield only a very small number of additional responsive documents. Therefore, the Court finds a re-search of documents Defendants have already searched and produced is overly burdensome.”

As a result, the court denied the plaintiffs’ request to “run document searches containing abbreviations and acronyms for agreed-upon search terms concepts”.

So, what do you think? Should the plaintiffs’ have been able to anticipate the abbreviations and acronyms during negotiations or should their motion have been granted to add them later? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Via Rule 45 Subpoena, Plaintiff Allowed to Search Non-Party Personal Hard Drive

January 16, 2012

A party can subpoena a nonparty to provide a personal computer for the forensic review of electronically stored information (ESI) under Rule 45 of the Federal Rules of Civil Procedure.

In Wood v. Town of Warsaw, N.C., No. 7:10-CV-00219-D, (E.D.N.C. Dec. 22, 2011), a former police chief alleged his former employer unfairly terminated him because of his age under the Age Discrimination in Employment Act. During discovery, the plaintiff sent a non-party subpoena to the former town hall manager, who the plaintiff claimed was responsible for his termination. In the subpoena, the plaintiff asked that the former town manager make his personal computer available for a search by a forensic expert using agreed-upon search terms. He also offered to pay for the cost of the search, excluding any privilege review that the town manager wanted to conduct.

The town manager objected to the subpoena and attempted to modify it, claiming the search would be expensive, would be time-consuming, and would invade his privacy. He also claimed he did not use his personal computer for work. He offered to search the computer himself and provide any documents that were responsive to the plaintiff’s requests in the subpoena.

The court reviewed Rule 45 of the Federal Rules of Civil Procedure, which required it to balance three factors in deciding whether to modify or quash a subpoena: (1) the relevance of the information sought, (2) the plaintiff’s need for the information, and (3) the potential hardship to the non-party. In doing so, it concluded that the plaintiff’s narrow request for “non-privileged documents identified by an electronic search for key words related to the claims and defenses asserted by the parties” was reasonable. The court also noted that “in this age of smart phones and telecommuting, it is increasingly common for work to be conducted outside of the office and through the use of personal electronic devices.” Therefore, it was reasonable to expect to find relevant ESI on the town manager’s computer. Finally, the fact that the plaintiff assumed all of the costs except the privilege review minimized the burden on the town manager.

The court also noted that the subpoena’s requests were limited to tangible documents, not including ESI, and would thus not “encompass the information sought by the request to search [the town manager’s] hard drive.”

Therefore, it ruled that the subpoena was proper but modified it to clarify that the plaintiff was not entitled to the complete contents of the hard drive—just to those responsive to the search terms that were neither privileged nor confidential.

So, what do you think? Should the search have been allowed? 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).

eDiscovery Trends: Our 2012 Predictions

January 12, 2012

Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year. It’s interesting to identify common trends among the prognosticators and also the unique predictions as well.

But we promised our own predictions for today, so here they are. One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry. Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012:

Still More ESI in the Cloud: Frankly, this is like predicting “the Sun will be hot in 2012”. Given the predictions in cloud growth by Forrester and Gartner, it seems inevitable that organizations will continue to migrate more data and applications to “the cloud”. Even if some organizations continue to resist the cloud movement, those organizations still have to address the continued growth in usage of social media sites in business (which, last I checked, are based in the cloud). It’s inevitable.
More eDiscovery Technology in the Cloud As Well: We will continue to see more cloud offerings for eDiscovery technology, ranging from information governance to preservation and collection to review and production. With the need for corporations to share potentially responsive ESI with one or more outside counsel firms, experts and even opposing counsel, cloud based Software-as-a-Service (SaaS) applications are a logical choice for sharing that information effortlessly without having to buy software, hardware and provide infrastructure to do so. Every year at LegalTech, there seems to be a few more eDiscovery cloud providers and this year should be no different.
Self-Service in the Cloud: So, organizations are seeing the benefits of the cloud not only for storing ESI, but also managing it during Discovery. It’s the cost effective alternative. But, organizations are demanding the control of a desktop application within their eDiscovery applications. The ability to load your own data, add your own users and maintain their rights, create your own data fields are just a few of the capabilities that organizations expect to be able to do themselves. And, more providers are responding to those needs. That trend will continue this year.
Technology Assisted Review: This was the most popular prediction among the pundits we reviewed. The amount of data in the world continues to explode, as there were 988 exabytes in the whole world as of 2010 and Cisco predicts that IP traffic over data networks will reach 4.8 zettabytes (each zettabyte is 1,000 exabytes) by 2015. More than five times the data in five years. Even in the smaller cases, there’s simply too much data to not use technology to get through it all. Whether it’s predictive coding, conceptual clustering or some other technology, it’s required to enable attorneys manage the review more effectively and efficiently.
Greater Adoption of eDiscovery Technology for Smaller Cases: As each gigabyte of data is between 50,000 and 100,000 pages, a “small” case of 4 GB (or two max size PST files in Outlook® 2003) can still be 300,000 pages or more. As “small” cases are no longer that small, attorneys are forced to embrace eDiscovery technology for the smaller cases as well. And, eDiscovery providers are taking note.
Continued Focus on International eDiscovery: So, cases are larger and there’s more data in the cloud, which leads to more cases where Discovery of ESI internationally becomes an issue. The Sedona Conference® just issued in December the Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation, illustrating how important an issue this is becoming for eDiscovery.
Prevailing Parties Awarded eDiscovery Costs: Shifting to the courtroom, we have started to see more cases where the prevailing party is awarded their eDiscovery costs as part of their award. As organizations have pushed for more proportionality in the Discovery process, courts have taken it upon themselves to impose that proportionality through taxing the “losers” for reimbursement of costs, causing prevailing defendants to say: “Sue me and lose? Pay my costs!”.
Continued Efforts and Progress on Rules Changes: Speaking of proportionality, there will be continued efforts and progress on changes to the Federal Rules of Civil Procedure as organizations push for clarity on preservation and other obligations to attempt to bring spiraling eDiscovery costs under control. It will take time, but progress will be made toward that goal this year.
Greater Price/Cost Control Pressure on eDiscovery Services: In the meantime, while waiting for legislative relief, organizations will expect the cost for eDiscovery services to be more affordable and predictable. In order to accommodate larger amounts of data, eDiscovery providers will need to offer simplified and attractive pricing alternatives.
Big Player Consolidation Continues, But Plenty of Smaller Players Available: In 2011, we saw HP acquire Autonomy and Symantec acquire Clearwell, continuing a trend of acquisitions of the “big players” in the industry. This trend will continue, but there is still plenty of room for the “little guy” as smaller providers have been pooling resources to compete, creating an interesting dichotomy in the industry of few big and many small providers in eDiscovery.

So, what do you think? Care to offer your own predictions? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: 2012 Predictions – By The Numbers

January 11, 2012

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year. I know what you’re thinking – “oh no, not another set of eDiscovery predictions!” However, at eDiscovery Daily, we do things a little bit differently. We like to take a look at other predictions and see if we can spot some common trends among those before offering some of our own (consider it the ultimate “cheat sheet”). So, as I did last year, I went “googling” for 2012 eDiscovery predictions, and organized the predictions into common themes. I found eDiscovery predictions here, here, here, here, here, here and Applied Discovery. Oh, and also here, here and here. Ten sets of predictions in all! Whew!

A couple of quick comments: 1) Not all of these are from the original sources, but the links above attribute the original sources when they are re-prints. If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment. 2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out. Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

Technology Assisted Review: Nine out of ten “prognosticators” (up from 2 out of 7 last year) predicted a greater emphasis/adoption of technological approaches. While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity. Clearly, as the amount of data associated with the typical litigation rises dramatically, technology is playing a greater role to enable attorneys manage the review more effectively and efficiently.
eDiscovery Best Practices Combining People and Technology: Seven out of ten “augurs” also had predictions related to various themes associated with eDiscovery best practices, especially processes that combine people and technology. Some have categorized it as a “maturation” of the eDiscovery process, with corporations becoming smarter about eDiscovery and integrating it into core business practices. We’ve had numerous posts regarding to eDiscovery best practices in the past year, click here for a selection of them.
Social Media Discovery: Six “pundits” forecasted a continued growth in sources and issues related to social media discovery. Bet you didn’t see that one coming! For a look back at cases from 2011 dealing with social media issues, click here.
Information Governance: Five “soothsayers” presaged various themes related to the promotion of information governance practices and programs, ranging from a simple “no more data hoarding” to an “emergence of Information Management platforms”. For our posts related to Information Governance and management issues, click here.
Cloud Computing: Five “mediums” (but are they happy mediums?) predict that ESI and eDiscovery will continue to move to the cloud. Frankly, given the predictions in cloud growth by Forrester and Gartner, I’m surprised that there were only five predictions. Perhaps predicting growth of the cloud has become “old hat”.
Focus on eDiscovery Rules / Court Guidance: Four “prophets” (yes, I still have my thesaurus!) expect courts to provide greater guidance on eDiscovery best practices in the coming year via a combination of case law and pilot programs/model orders to establish expectations up front.
Complex Data Collection: Four “psychics” also predicted that data collection will continue to become more complex as data sources abound, the custodian-based collection model comes under stress and self-collection gives way to more automated techniques.

The “others receiving votes” category (three predicting each of these) included cost shifting and increased awards of eDiscovery costs to the prevailing party in litigation, flexible eDiscovery pricing and predictable or reduced costs, continued focus on international discovery and continued debate on potential new eDiscovery rules. Two each predicted continued consolidation of eDiscovery providers, de-emphasis on use of backup tapes, de-emphasis on use of eMail, multi-matter eDiscovery management (to leverage knowledge gained in previous cases), risk assessment /statistical analysis and more single platform solutions. And, one predicted more action on eDiscovery certifications.

Some interesting predictions. Tune in tomorrow for ours!

So, what do you think? Care to offer your own “hunches” from your crystal ball? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Defendants Not Required to Share Costs for Plaintiff’s Third Party Request

January 10, 2012

After recapping 2011 case law over four days last week, it seems appropriate to move on to new cases, starting with a couple of stragglers from last year.

In Last Atlantis Capital LLC v. AGS Specialist Partners, No. 04 C 0397, 2011 WL 6097769 (N.D. Ill. Dec. 5, 2011), the plaintiffs proposed that the defendants share in the cost of obtaining data that Plaintiffs subpoenaed from third parties. The court noted that all parties “involved herein are aware that the linchpin of this entire matter” was to obtain this audit trail data for analysis. The court had also previously suggested (at a September status conference) “in an effort to accelerate this protracted litigation” that it would be “reasonable” for Defendants to aid in half the costs. Nonetheless, the court rejected the plaintiff’s proposal for cost-sharing in this case, rejecting the plaintiff arguments for doing so. Here are the arguments and the court’s rejection of each:

Court's comments during the September Status Conference as evidence that costs should be shared: While the court admitted to suggesting to Defendants that Plaintiffs' proposal of cost sharing sounded “reasonable”, those comments “were made to encourage movement within this stagnant litigation”. Once the Court was able to further research the precedent surrounding cost-sharing, it found no basis for accepting the Plaintiffs' cost-sharing proposal.
Plaintiffs' reliance upon the Sedona Conference Commentary on Non–Party Production & Rule 45 Subpoenas, 9 Sedona Conf. J. 197 (2008): The court felt that this Sedona Conference Commentary was “almost entirely irrelevant” to the matter at hand as it “is largely concerned with the burden being placed on a non-party to produce information”. Despite the fact that the Commentary “includes a suggestion that parties meet and confer to ‘address’ cost-sharing, amongst other things, in their initial Rule 26(f) conference”, it did not dictate such an arrangement; rather, the Commentary declares that “[c]ost-shifting or cost-sharing are inconsistent with the so-called ‘American Rule’ that each party bears its own litigation costs”.
Other Court Opinions: The plaintiffs cited several court opinions – such as Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 573 (N.D.Ill.2004) and Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 320 (S.D.N.Y.2003) – to attempt to bolster their argument. However, the court noted that all of the court opinions “miss the mark as they each address the issue of cost-sharing amongst the requesting party and the producing party, not between a requesting party and a non-requesting, non-producing opponent in the underlying litigation, such as with Defendants.”

The court acknowledged that the defendants had “substantially more resources,” but noted that was a fact it could not consider. Therefore, the court ruled that “it would not force Defendants to pay for the evidence that Plaintiffs need in order to prove their case against Defendants” and the plaintiffs’ proposal for cost-shifting was denied.

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

eDiscovery Year in Review: eDiscovery Case Law, Part 4

January 6, 2012

As we noted the past three days, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to discovery of social media. One final set of cases to review.

We grouped those cases into common subject themes and have been reviewing them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

SANCTIONS / SPOLIATION

Behold the king! I’ll bet that you won’t be surprised that the topic with the largest number of case law decisions (by far!) related to eDiscovery are those related to sanctions and spoliation issues. Late in 2010, eDiscovery Daily reported on a Duke Law Journal article that indicated back then that sanctions were at an all-time high and the number of cases with sanction awards remains high.

Of the 50 cases we covered this past year, over a third of them (17 total cases) related to sanctions and spoliation issues. Here they are. And, as you’ll see by the first case (and a few others), sanctions requested are not always granted. Then again, sometimes both sides get sanctioned!

No Sanctions for Scrubbing Computers Assumed to be Imaged. In this case, data relevant to the case was lost when computers were scrubbed and sold by the defendants with the permission of the court-appointed Receiver, based on the Receiver’s mistaken belief that all relevant computers had been imaged and instruction to the defendants to scrub all computers before selling. Because of the loss of this data, defendants filed a motion for spoliation sanctions for what they described as “the FTC’s bad-faith destruction of Defendants’ computer systems.” Was the motion granted?

Spoliate Evidence, Don’t Go to Jail, but Pay a Million Dollars. Defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to "be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs". However, ruling on the defendants’ appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating it was not "appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment…". So, how much was he ordered to pay? Now we know. That decision was affirmed here.

Deliberately Produce Wrong Cell Phone, Get Sanctioned. In this case, the plaintiff originally resisted production of a laptop and a cell phone for examination, but ultimately produced a laptop and cell phone. The problem with that production? After examination, it was determined that neither device was in use during the relevant time period and the actual devices used during that time frame were no longer in plaintiff’s possession. When requested to explain as to why this was not disclosed initially, the plaintiff’s attorney explained that he was torn between his “competing duties” of protecting his client and candor to the court. Really?

Destroy Data, Pay $1 Million, Lose Case. A federal judge in Chicago has levied sanctions against Rosenthal Collins Group LLC and granted a default judgment to the defendant for misconduct in a patent infringement case, also ordering the Chicago-based futures broker's counsel to pay "the costs and attorneys fees incurred in litigating this motion" where plaintiff’s agent modified metadata related to relevant source code and wiped several relevant disks and devices prior to their production and where the court found counsel participated in "presenting misleading, false information, materially altered evidence and willful non-compliance with the Court’s orders."

Conclusion of Case Does Not Preclude Later Sanctions. In this products liability case that had been settled a year earlier, the plaintiff sought to re-open the case and requested sanctions alleging the defendant systematically destroyed evidence, failed to produce relevant documents and committed other discovery violations in bad faith. As Yogi Berra would say, “It ain’t over ‘til it’s over”.

Written Litigation Hold Notice Not Required. The Pension Committee case was one of the most important cases of 2010 (or any year, for that matter). So, perhaps it’s not surprising that it is starting to become frequently cited by those looking for sanction for failure to issue a written litigation hold. In this case, the defendant cited Pension Committee, arguing that plaintiff’s failure to issue a written litigation hold and subsequent failure to produce three allegedly relevant emails allowed for a presumption that relevant evidence was lost, thereby warranting spoliation sanctions. Was the court’s ruling consistent with Pension Committee?

No Sanctions Ordered for Failure to Preserve Backups. A sanctions motion has been dismissed by the U.S. District Court of Texas in a recent case involving electronic backups and email records, on the grounds that there was no duty to preserve backup tapes and no bad faith in overwriting records.

Discovery Violations Result in Sanctions Against Plaintiff and Counsel. Both the plaintiff and plaintiff's counsel have been ordered to pay sanctions for discovery abuses in a lawsuit in Washington court that was dismissed with prejudice on June 8, 2011.

Meet and Confer is Too Late for Preservation Hold. A US District court in Indiana ruled on June 28 in favor of a motion for an Order to Secure Evidence in an employment discrimination lawsuit. The defendant had given the plaintiff reason to believe that emails and other relevant documents might be destroyed prior to Rule 26(f) meeting between the parties or Rule 16(b) discovery conference with the court. As a result, the plaintiff formally requested a litigation hold on all potentially relevant documents, which was approved by US Magistrate Judge Andrew Rodovich.

Court Orders Sanctions in Response to "Callous and Careless Attitude" of Defendant in Discovery. A Special Master determined that multiple discovery failures on the part of the defendant in an indemnity action were due to discovery procedures "wholly devoid of competence, yet only once motivated by guile". Accordingly, the court ordered sanctions against the defendant and also ordered the defendant to pay all costs associated with its discovery failures, including plaintiff's attorney fees and costs.

Court Upholds Sanctions for Intentional Spoliation of Unallocated Space Data. The Supreme Court of Delaware recently upheld the sanctions against the defendant for wiping the unallocated space on his company’s computer system, despite a court order prohibiting such destruction. In this case, Arie Genger, CEO of Trans-Resources, Inc., argued that sanctions against him were unreasonable and made a motion for the court to overturn its previous decision regarding spoliation of discovery materials. Instead, after due process, the court upheld its earlier decision.

Sanctions for Spoliation, Even When Much of the Data Was Restored. A Virginia court recently ordered sanctions against the defendant in a case of deliberate spoliation of electronic discovery documents. In this case, the defendant was found to have committed spoliation "in bad faith" in a manner that constituted a "violation of duty… to the Court and the judicial process."

"Untimely" Motion for Sanctions for Spoliation Denied. A recent ruling by the US District Court of Tennessee has denied a motion for sanctions for spoliation on the grounds that the motion was "untimely." In this case, the plaintiff argued that the defendants' admitted failure to preserve evidence "warrants a harsh penalty," but the court found in favor of the defense that the motion was untimely.

Defendant Sanctioned for Abandonment and Sale of Server; Defendants' Counsel Unaware of Spoliation. An Illinois District Court ordered heavy sanctions against the defense for spoliation "willfully and in bad faith" of documents stored on a server, in a case revolving around damages sought for breach of loan agreements.

Facebook Spoliation Significantly Mitigates Plaintiff’s Win. In this case with both social media and spoliation issues, monetary sanctions were ordered against the plaintiff and his counsel for significant discovery violations. Those violations included intentional deletion of pictures on the plaintiff’s Facebook page as instructed by his Counsel as well as subsequent efforts to cover those instructions up, among others.

Lilly Fails to Meet its eDiscovery Burden, Sanctions Ordered. In this case, a Tennessee District court found that “Lilly failed to take reasonable steps to preserve, search for, and collect potentially relevant information, particularly electronic data, after its duty to preserve evidence was triggered by being served with the complaint.” As a result, the court ordered sanctions against Lilly. How far did the court go with those sanctions?

Court Grants Adverse Inference Sanctions Against BOTH Sides. Have you ever seen the video where two boxers knock each other out at the same time? That’s similar to what happened in this case. In this case, the court addressed the parties’ cross motions for sanctions, ordering an adverse inference for the defendants’ failure to preserve relevant video surveillance footage, as well as an adverse inference for the plaintiff’s failure to preserve relevant witness statements. The court also awarded defendants attorneys’ fees and costs and ordered re-deposition of several witnesses at the plaintiff’s expense due to other plaintiff spoliation findings.

Next week, we will begin looking ahead at 2012 and expected eDiscovery trends for the coming year.

So, what do you think? Of all of the cases that we have recapped over the past four days, which case do you think was the most significant? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Year in Review: eDiscovery Case Law, Part 3

January 5, 2012

As we noted the past two days, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases! Yesterday, we looked back at cases related to privilege & inadvertent disclosures, proportionality and eDiscovery service disputes, including the notable McDermott Will & Emery eDiscovery malpractice case. But, we still have more cases to review. So, let’s keep going!

We grouped those cases into common subject themes and will review them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!

SOCIAL MEDIA

Social media affects all aspects of litigation from the discovery of data from social media web sites to social media communication during trial. You even have jurors trying to “friend” participants in the case!

Organizations now have to not only plan for preserving, collecting, reviewing and producing conventional data, but also posts, tweets, IMs and more. You know that already. What you may not know is that in nearly every case discussed in eDiscovery Daily this past year where social media data was requested, that request was granted. Oh, and if you have text messages as evidence, you may have to provide corroborating evidence to verify authorship of those text messages for them to be admissible – at least in Pennsylvania. Here are eight cases related to social media issues:

Jurors and Social Media Don’t Mix. Discovery of social media is continuing to increase as a significant issue for organizations to address, with more and more cases addressing the topic. However, when it comes to social media, courts agree on one thing: jurors and social media don’t mix. Courts have consistently rejected attempts by jurors to use social technology to research or to communicate about a case, and have increasingly provided pre-trial and post-closing jury instructions to jurors to dissuade them from engaging in this practice.

Cut and Paste Makes the Cut as Evidence. In this case, the defendant in a criminal case appealed his conviction and raised the issue of whether the prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.

Defendant Can’t Be Plaintiff’s Friend on Facebook. In this case, Bucks County, Pa., Common Pleas Court Judge Albert J. Cepparulo denied the motion from the defendant requesting access to the photos of plaintiff Sara Piccolo posted in her Facebook account, rejecting McMillen v. Hummingbird Speedway, Inc., in which the court ordered the plaintiff to provide his username and password to the defendant’s attorney, as a precedent.

Social Media Posts Deemed Discoverable in Personal Injury Case. A Pennsylvania court recently ordered the plaintiff in a personal injury lawsuit to disclose social media passwords and usernames to the defendant for eDiscovery. Discoverability of social media continues to be a hot topic in eDiscovery, as eDiscovery Daily has noted in summaries of prior cases that reflect varied outcomes for requests to access social media data.

A Pennsylvania Court Conducts Its Own Social Media Relevancy Review. Pennsylvania seems to be taking the lead in setting social media discovery precedents. In this case, a Pennsylvania court agreed to review a plaintiff's Facebook account in order to determine which information is subject to discovery in a case relating to the plaintiff's claim of injury in a motor vehicle accident.

Defendant Ordered to Re-Post Infringing Photograph to Facebook Profile. In this case, a New Jersey court ordered the defendant to re-post a photograph displaying infringing trade dress to his Facebook profile for a brief period of time to allow the plaintiff to print copies, in a case involving trademark infringement.

Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility. When are text messages admissible in court? Which text messages qualify as evidence, and what does it take to prove authorship of a text message? A recent opinion from the Pennsylvania Superior Court addresses these very issues in an old yet new way, perhaps setting the precedent for future cases and opening what seems to be a potential Pandora's Box of obstacles to the use of text messages as legal evidence.

Facebook Content Discoverable Yet Again. It seems most, if not all, of the cases these days where discoverability of social media is at issue are being decided by courts in favor of the parties seeking to discover this information. Here’s another example.

Tune in tomorrow for more key cases of 2011 and see the topic that continues to generate more case law related to eDiscovery than any other! Yes, I know I said that yesterday, but I forgot that topic was planned for the big finish tomorrow. Stay tuned!

So, what do you think? Did you miss any of these? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Law