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Preservation

eDiscovery Trends: Potential ESI Sources Abound in Penn State Case
 

Whether you’re a college football fan or not, chances are you’ve heard about the scandal associated with the allegations of serial child abuse by former Penn State football coach Jerry Sandusky.  There seems to be new developments almost daily and the scandal has already cost the jobs of the university president, vice president, athletic director and the head football coach, Joe Paterno, who had been head coach since 1965 and on the coaching staff since 1950 (most of us weren’t even born yet!).  Numerous lawsuits seem highly likely to arise as a result of the alleged abuse against a variety of defendants, including the university, individuals alleged to be involved in the abuse and cover-up and also the Second Mile Foundation founded by Sandusky.

Seth Row, an attorney with Parsons Farnell & Grein LLP in Portland (OR), has written an article published in the Association of Certified eDiscovery Specialists (ACEDS) web site providing a detailing of potential sources of ESI that may be relevant in the case.  The article illustrates the wide variety of sources that might be responsive to the litigation.  Here are some of the sources cited by Row:

  • Videotape of entry and exit from the athletic facilities at Penn State, to which Paterno gave Sandusky access after the latter resigned in 1999;
  • Entry/exit logs, which are likely housed in a database if keycards were used, for the Lasch Football Building, where abuse was allegedly witnessed
  • Phone records of incoming and outgoing calls;
  • Electronic rosters of football players, coaches, staff, student interns, and volunteers affiliated with the Penn State football program over time;
  • The personal records of these individuals, including telephone logs, internet search histories, email accounts, medical and financial records, and related information created over time;
  • University listservs;
  • Internet forums – a New York Times article reported last week that a critical break in the investigation came via a posting on the Internet, mentioning that a Penn State football coach might have seen something ugly, but kept silent;
  • Maintenance logs maintained by the two custodial employees who allegedly witnessed abuse;
  • Identities of all media beat reporters who covered the Penn State football team;
  • Passenger and crew manifests for all chartered flights of the Penn State football team in which Sandusky was a passenger;
  • Sandusky's credit card records to document meals and outings where he may have been accompanied by victims, and records of gifts he purchased for them;
  • All records of the Second Mile Foundation identifying boys who participated in its programs, as well as the names of donors and officers, directors and staff;
  • Paper record equivalents of this ESI that were produced in the 1990s before electronic recordkeeping became prevalent;
  • All electronic storage and computing devices owned or maintained by Sandusky, Paterno and other central figures in the scandal, including cell phones, personal computers, tablet computers, flash drives, and related hardware.

With such a wide variation of potential custodians and time frames, it will be difficult to quickly narrow down the potential ESI sources.  As the author points out, it seems likely that Penn State has already locked down its records retention policies throughout the university.  They certainly would seem to have a reasonable expectation of litigation.  Investigators and attorneys will likely be racing against time to identify as many other parties as possible with potentially responsive ESI.

So, what do you think?  Have you been involved in litigation with such a wide distribution of potentially responsive ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Data Mapping Doesn’t Have to be Complicated
 

Some time ago, we talked about the importance of preparing a data map of your organization’s data to be ready when litigation strikes.

Back then, we talked about four steps to create and maintain an effective data map, including:

  • Obtaining early “buy-in” with various departments throughout the organization;
  • Document and educate to develop logical and comprehensive practices for managing data;
  • Communicate regularly so that new data stores (or changes to existing ones) can be addressed as they occur;
  • Update periodically to keep up with changes in technology that create new data sources.

The data map itself doesn’t have to be complicated.  It can be as simple as a spreadsheet (or series of spreadsheets, one for each department or custodian, depending on what level of information is likely to be requested).  Here are examples of types of information that you might see in a typical data map spreadsheet:

  • Type of Data: Prepare a list and continue to add to it to ensure all of the types or data are considered.  These can include email, work product documents, voice mail, databases, web site, social media content, hard copy documents, and any other type of data in use within your organization.
  • Department/Custodian: A data map is no good unless you identify the department or custodian responsible for the data.  Some of these may be kept by IT (e.g., Exchange servers for the entire organization) while others could be down to the individual level (e.g., Access databases kept on an individual’s laptop).
  • Storage Classification: The method(s) by which the data is stored by the department or custodian is important to track.  You’ll typically have Online, Nearline, Offline and Inaccessible Data.  A type of data can apply to multiple or even all storage classifications.  For example, email can be stored Online in Exchange servers, Nearline in an email archiving system, Offline in backup tapes and Inaccessible in a legacy format.  Therefore, you’ll need a column in your spreadsheet for each storage classification.
  • Retention Policy: Track the normal retention policy for each type of data stored by each department of custodian (e.g., retain email for 5 years).  While a spreadsheet won’t automatically identify when specific data is “expired”, a regular process of looking for data older than the retention time period will enable your organization to purge “expired” data.
  • Litigation Hold Applied: Unless of course, that data is subject to an active litigation hold.  If so, you’ll want to identify the case(s) for which the hold is applied and be prepared to update to remove those cases from the list once the hold obligation is released.  If all holds are released on normally “expired” data and no additional hold obligations are expected, that may be the opportunity to purge that data.
  • Last Update Date: It’s always a good idea to keep track of when the information in the data map was last updated.  If it’s been a while since that last update, it might be time to coordinate with that department or custodian to bring their portion of the data map current.

As you see, a fairly simple 9 or 10 column spreadsheet might be all you need to start gathering information about the data stores in your organization.

So, what do you think?  Has your organization implemented a data mapping program?  If not, why not? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone
 

This subject came up recently in discussion with one of my clients and since he was confused as to what happens when a file is deleted, I thought it would be worthwhile to discuss the topic on the blog.

Disk drives use an index or table to keep track of where each file begins and ends on the disk.  You may have heard terms such as “FAT” (file allocation table) or NTFS ({Windows} NT File System) – these filing systems enable the file to be retrieved quickly on the drive.  They’re like a “directory” of all of the active files on the disk.  When a file is “deleted” (i.e., actually deleted, not just moved to the Recycle Bin), the data for that file isn’t actually removed from the disk (in most cases).  Instead, the entry pertaining to it is removed from the filing system.  As a result, the area on the disk where the actual data is located becomes unallocated space.

Unallocated space, also known as inactive data or drive free space, is the area of the drive not allocated to active data. On a Windows machine, deleted data is not actually destroyed, but the space on the drive that can be reused to store new information. Until the unallocated space is overwritten with new data, the old data remains.  This data can be retrieved (in most cases) using forensic techniques. On MAC O/S 10.5 and higher, there is an application that overwrites sectors when a file is deleted. This process more securely destroys data, but even then it may be possible to recover data out of unallocated space.

Because the unallocated space on a hard drive or server is that portion of the storage space to which data may be saved, it is also where many applications “temporarily” store files when they are in use. For instance, temporary Internet files are created when a user visits a web page, and these pages may be “cached” or temporarily stored in the unallocated space.  Rebooting a workstation or server can also clear some data from the unallocated space on its drive.

Since computers are dynamic and any computer operation may write data to the drive, it is nearly impossible to preserve data in the unallocated space on the hard drive and that data is not accessible without special software tools. To preserve data from the unallocated space of a hard drive, the data must be forensically collected, which basically copies the entire drive’s contents, including every sector (whether those sectors contain active data or not). Even then, data in the unallocated space may not be complete. Because the unallocated space is used to store new data, writing a new file may overwrite part of a deleted file, leaving only part of that file in the unallocated space.

Nonetheless, “deleted” files have been recovered, collected and produced in numerous lawsuits, despite efforts of some producing parties to destroy that evidence.

So, what do you think?  Have you ever recovered deleted data that was relevant to litigation?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: KPMG Denied in Request for “Proportionality Test” to Preservation

In Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)(JLC), (S.D.N.Y. Oct. 7, 2011), defendant’s request for a protective order allowing it to maintain only a random sample of 100 hard drives from 2,500 laptops or to require plaintiffs to bear the cost of maintaining 2,500 hard drives was denied.

It was not shown that information on the hard drives was duplicative, and it was too early in the litigation to know whether the cost of maintaining the hard drives was proportional to plaintiffs’ potential recovery. In an action concerning whether accountants should be considered exempt employees under the Fair Labor Standards Act, defendant sought an order allowing it to preserve only a random sample of 100 hard drives from laptops of former and departing accountant employees. Defendant already was preserving almost 2,500 such hard drives at a cost of $1.5 million. As an alternative, defendant sought an order requiring plaintiffs to bear the cost of maintaining more than 100 of the hard drives.

Plaintiffs were willing to use sampling to lessen the number of hard drives but contended that a random sample of the hard drives would not be a meaningful sample. Plaintiffs also contended that keyword searching of the random samples suggested by defendant was outmoded and not likely to cull out information sought by plaintiffs, including work product and hours worked by defendant’s accountant associates. Plaintiffs sought an order requiring production of five of the hard drives for inspection so that the parties could negotiate a resolution to the hard drive preservation issue. The court denied defendant’s motion for a protective order and directed defendant to preserve hard drives of members of the New York class that plaintiffs sought to represent.

While the court considered defendant’s preservation efforts “comprehensive,” it did not appear that other information being preserved duplicated information on the hard drives. Also, the cost of preserving the hard drives could be substantial but it was too early to know whether that cost would be proportional to the value of the litigation. The court added that courts in the Southern District of New York “have cautioned against the application of a proportionality test as it relates to preservation.” While the court would not order defendant to provide plaintiffs with five sample hard drives, it encouraged the parties to seek agreement on sampling pending a ruling on class certification and a lifting of the stay of discovery in the action.

So, what do you think?  Do proportionality and preservation mix?  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.

eDiscovery Rewind: Eleven for 11-11-11
 

Since today is one of only 12 days this century where the month, day and year are the same two-digit numbers (not to mention the biggest day for “craps” players to hit Las Vegas since July 7, 2007!), it seems an appropriate time to look back at some of our recent topics.  So, in case you missed them, here are eleven of our recent posts that cover topics that hopefully make eDiscovery less of a “gamble” for you!

eDiscovery Best Practices: Testing Your Search Using Sampling: On April 1, we talked about how to determine an appropriate sample size to test your search results as well as the items NOT retrieved by the search, using a site that provides a sample size calculator. On April 4, we talked about how to make sure the sample set is randomly selected. In this post, we’ll walk through an example of how you can test and refine a search using sampling.

eDiscovery Best Practices: Your ESI Collection May Be Larger Than You Think: Here’s a sample scenario: You identify custodians relevant to the case and collect files from each. Roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose “efiles” is collected in total from the custodians. You identify a vendor to process the files to load into a review tool, so that you can perform first pass review and, eventually, linear review and produce the files to opposing counsel. After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!! What happened?!?

eDiscovery Trends: Why Predictive Coding is a Hot Topic: Last month, we considered a recent article about the use of predictive coding in litigation by Judge Andrew Peck, United States magistrate judge for the Southern District of New York. The piece has prompted a lot of discussion in the profession. While most of the analysis centered on how much lawyers can rely on predictive coding technology in litigation, there were some deeper musings as well.

eDiscovery Best Practices: Does Anybody Really Know What Time It Is?: Does anybody really know what time it is? Does anybody really care? OK, it’s an old song by Chicago (back then, they were known as the Chicago Transit Authority). But, the question of what time it really is has a significant effect on how eDiscovery is handled.

eDiscovery Best Practices: Message Thread Review Saves Costs and Improves Consistency: Insanity is doing the same thing over and over again and expecting a different result. But, in ESI review, it can be even worse when you get a different result. Most email messages are part of a larger discussion, which could be just between two parties, or include a number of parties in the discussion. To review each email in the discussion thread would result in much of the same information being reviewed over and over again. Instead, message thread analysis pulls those messages together and enables them to be reviewed as an entire discussion.

eDiscovery Best Practices: When Collecting, Image is Not Always Everything: There was a commercial in the early 1990s for Canon cameras in which tennis player Andre Agassi uttered the quote that would haunt him for most of his early career – “Image is everything.” When it comes to eDiscovery preservation and collection, there are times when “Image is everything”, as in a forensic “image” of the media is necessary to preserve all potentially responsive ESI. However, forensic imaging of media is usually not necessary for Discovery purposes.

eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off: Federal Rule of Civil Procedure 37(f), adopted in 2006, is known as the “safe harbor” rule. While it’s not always clear to what extent “safe harbor” protection extends, one case from a few years ago, Disability Rights Council of Greater Washington v. Washington Metrop. Trans. Auth., D.D.C. June 2007, seemed to indicate where it does NOT extend – auto-deletion of emails.

eDiscovery Best Practices: Checking for Malware is the First Step to eDiscovery Processing: A little over a month ago, I noted that we hadn’t missed a (business) day yet in publishing a post for the blog. That streak almost came to an end back in May. As I often do in the early mornings before getting ready for work, I spent some time searching for articles to read and identifying potential blog topics and found a link on a site related to “New Federal Rules”. Curious, I clicked on it and…up popped a pop-up window from our virus checking software (AVG Anti-Virus, or so I thought) that the site had found a file containing a “trojan horse” program. The odd thing about the pop-up window is that there was no “Fix” button to fix the trojan horse. So, I chose the best available option to move it to the vault. Then, all hell broke loose.

eDiscovery Trends: An Insufficient Password Will Thwart Even The Most Secure Site: Several months ago, we talked about how most litigators have come to accept that Software-as-a-Service (SaaS) systems are secure. However, according to a recent study by the Ponemon Institute, the chance of any business being hacked in the next 12 months is a “statistical certainty”. No matter how secure a system is, whether it’s local to your office or stored in the “cloud”, an insufficient password that can be easily guessed can allow hackers to get in and steal your data.

eDiscovery Trends: Social Media Lessons Learned Through Football: The NFL Football season began back in September with the kick-off game pitting the last two Super Bowl winners – the New Orleans Saints and the Green Bay Packers – against each other to start the season. An incident associated with my team – the Houston Texans – recently illustrated the issues associated with employees’ use of social media sites, which are being faced by every organization these days and can have eDiscovery impact as social media content has been ruled discoverable in many cases across the country.

eDiscovery Strategy: "Command" Model of eDiscovery Must Make Way for Collaboration: In her article "E-Discovery 'Command' Culture Must Collapse" (via Law Technology News), Monica Bay discusses the old “command” style of eDiscovery, with a senior partner leading his “troops” like General George Patton – a model that summit speakers agree is "doomed to failure" – and reports on the findings put forward by judges and litigators that the time has come for true collaboration.

So, what do you think?  Did you learn something from one of these topics?  If so, which one?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscoveryDaily would like to thank all veterans and the men and women serving in our armed forces for the sacrifices you make for our country.  Thanks to all of you and your families and have a happy and safe Veterans Day!

eDiscovery Trends: SEC Orders Its Staff to Cease Document Destruction Pending Policy Review
 

The U.S. Securities and Exchange Commission ("SEC") recently ordered all of its enforcement staff attorneys to cease the destruction of documents from investigative files after criticism that the SEC wrongfully destroyed thousands of documents associated with high profile enforcement matters, including investigations into Wall Street banks.  The National Archives and Records Administration (NARA) and the SEC's inspector general are currently examining whether the organization's document destruction policy requires revision. This cease order comes in the wake of information provided by a SEC whistleblower, indicating that the SEC wrongfully destroyed thousands of documents from preliminary investigations referred to as “MUIs” (Matters Under Inquiry).

  • In the past, the SEC would destroy documents pertaining to “MUIs” that had been closed, including cases that never developed into formal investigations as well as those that had been decided.
  • Some of these destroyed documents pertained, either directly or peripherally, to what would later become high profile cases. Among them were documents relevant to the Madoff Ponzi scheme and several Wall Street bank fraud investigations.
  • Although private companies routinely destroy documents and files that are closed or no longer in use, the SEC is subject to federal laws and regulations that require federal agencies to retain more records than a private firm. The SEC has been criticized by members of Congress of violating these laws and avoiding its legal compliance burden, especially where destroyed documents could have proven crucial in later legal cases.
  • As a result, the present controversy has forced the SEC to work with NARA to reconsider its document retention policies and to suspend, for now, destruction of files and documents. Parties are still arguing whether a requirement to retain all documentation distracts resources from the SEC's main objective of preventing, discovering and penalizing those involved in securities fraud.

So, what do you think? Has the SEC failed in a serious way to meet compliance standards, or is this controversy placing undue emphasis on documents that are unlikely to ever be needed? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Horrors! Does This Scare You?
 

Today is Halloween.  While we could try to “scare” you with the traditional “frights”, we’re an eDiscovery blog, so it seems appropriate to try to “scare” you in a different way.  Does this scare you?

Although the court declined to re-open the case, it found that defendant had committed discovery abuses, including failing to disclose relevant evidence and failing to issue a litigation hold; therefore, the court ordered the defendant to pay plaintiff an additional $250,000 over the previously agreed settlement amount.  The court further ordered that defendant had thirty days to furnish a copy of the court’s Memorandum Opinion and Order “to every Plaintiff in every lawsuit it has had proceeding against it, or is currently proceeding against it, for the past two years” and issued an additional $500,000 sanction to be “extinguished” upon a showing of compliance.

What about this?

Even though many (but not all) of the documents were recovered (most from backup tape), the court rejected the defendant’s argument that “there can be no spoliation finding because many documents were recovered” and eventually produced, stating: "The fact that technology permits the undoing of spoliation does not change at all the fact that spoliation has occurred."

Or this?

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”

How about this?

The court concluded based on case history that “emails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally” and found that the evidence that the defendant had authored these text messages was absent.

Scary, huh?  If the possibility of sanctions and changing court requirements keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Of course, if you really want to get into the spirit of Halloween, click here.  This will really terrify you!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

eDiscovery Case Law: 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.

In United Cent. Bank v. Kanan Fashions, Inc., No. 10 C 331, 2011 WL 4396856 (N.D. Ill. Sept. 21, 2011), the defendants were found to have hidden and sold (or fabricated the sale of) a server which was subject to discovery. The defendants also misled their own counsel about their discovery procedures with regard to its preservation obligations and the sale of this crucial server. Accordingly, a magistrate judge ruled in favor of sanctions against the defendants based almost entirely on recommendations made in United Cent. Bank v. Kanan Fashions, Inc., No. 10 CV 331, 2011 WL 4396912 (N.D. Ill. Mar. 31, 2011):

  • Although the defendants’ counsel reminded them several times of their obligation to preserve evidence, and the defendants claimed at all times that they were taking the necessary steps to ensure a smooth and correct discovery process, they misled their own attorneys. In fact, the defendants proceeded to sell a server that contained information relevant to the suit.
  • The circumstances associated with the sale were extensive, involving the defendants defaulting on a loan on the warehouse in which the server was stored. When they made plans for foreclosure on the warehouse, they also made arrangements that the bank would purchase the lease on the server, originally held by a different lender, without informing their defense lawyers.
  • When defense counsel learned of the foreclosure and these arrangements, the defendants maintained that they could get access to the server as needed for discovery.
  • Several months later, the court ordered the defendants to retrieve either the server or a forensic copy of its contents for discovery. It was only a few days later that the defendants informed their counsel and the court that the server had been sold by the bank to a business in Dubai.
  • All of the above took place after the defendants had been repeatedly informed of the need to preserve evidence for discovery, and of their obligations with regard to ESI.
  • The circumstances of the sale of the server were so unusual that the court concluded that the defendants had, themselves, had a hand in the sale of the server to Dubai and the removal of the server from the court’s reach.
  • The magistrate judge found that defendants were solely responsible for the spoliation, having deliberately misled the court, the plaintiffs, and the defendant’s own counsel.
  • Defendants were ordered to pay sanctions that include reimbursement of the plaintiff for all costs related to the Motion for Sanctions. Defendants are also “barred from introducing any evidence regarding the data on the warehouse server”. The jury is to be “informed of the Defendants’ abandoning of the server” and instructed that the spoliation of the server “may be considered evidence that the server contained evidence unfavorable to Defendants’ position.”
  • The plaintiff’s request for sanctions against the defense counsel was dismissed by the magistrate judge.

So, what do you think? Have you ever been involved in a case where a similar instance of spoliation took place? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Opinions…Everybody Has One
 

With the number of presidential candidacy polls already being conducted with over a year(!) before the 2012 presidential election, it’s no surprise that just about everyone is willing to express an opinion on just about anything.  With that in mind, one of the best eDiscovery blogs out there, Ralph Losey’s e-Discovery Team blog, is currently conducting a confidential poll of its readers related to various eDiscovery topics.

Using Polldaddy.com, Ralph asks questions related to various eDiscovery topics, including confidentiality orders, privacy rights, eDiscovery certification and new Federal Rules for eDiscovery.  He even asks a polling question of his readers as to whether they like these polls!  Amazingly, 13 people (10.48%) so far have responded ‘no’ to that question, which makes me wonder why they would take the time to respond when they don’t like polls?  Hmmm…  😉

Each of the polling questions not only provides a button to vote, but also provides a link to view results.  If there’s an end date to the poll at some point, Ralph doesn’t indicate one, so it appears that the ‘polls’ are open indefinitely.  The questions each have ‘yes’ and ‘no’ selections, along with an ‘other’ (with space to put in a comment and usually a fourth qualifying option (for example, question #2 below provides a choice for ‘Most of the time, but not always’).

I don’t want to “steal anyone’s thunder” and report current results, but you can use the link above to check out current results for each of the questions.  I will say that it appears that most of the questions have at least 100 responses so far, with some having a clear majority opinion and others being much more evenly distributed in responses.  Here are the questions Ralph asks in his blog post (excepting the aforementioned question about liking polls):

  1. Should courts routinely enter umbrella confidentiality protective orders during the discovery phase of the case?
  2. Should the public have a right to see all information filed with a court?
  3. Should all information accepted into evidence in a trial be disclosed to the public?
  4. Should Plaintiffs in civil suits have a right to protect from public disclosure any of their confidential information that is directly relevant to their case?
  5. Should Defendants in civil suits have a right to protect from public disclosure their confidential information that is directly relevant to the case?
  6. Should corporations have the same privacy rights as individuals?
  7. Is lack of privacy a problem in the United States?
  8. Are you concerned about your employer's right to read your email?
  9. Would you like stronger U.S. privacy laws where no one can read your email and other personal communications without your permission? (multiple answers allowed)
  10. Would you like to see privacy protection on the Internet strengthened?
  11. Do you agree with Patrick Oot? (and his criticism of eDiscovery certification programs)
  12. Do you think there is a need for certification of expertise in the field of electronic discovery?*
  13. Do you think there is a need for extensive training programs in e-discovery law?
  14. Do we need to amend the Federal Rules of Civil Procedure again soon to address e-discovery issues?
  15. Do we need to amend the FRCP to add one or more new rules on preservation?
  16. Should the rules be amended to limit the scope of relevancy in discovery?

*I have a ‘bone to pick’ with one of the potential responses to question 12 (Yes, but only State Bar Associations should do it) as it implies that the only people who need certification are attorneys and other legal practitioners, when technologists and consultants need it too.

I encourage you to check out the post, vote and view current results.  Even if you don’t like polls.  😉

So, what do you think?  Can we learn anything from polls like this?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Defendant Ordered to Re-Post Infringing Photograph to Facebook Profile

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.

In Katiroll Co., Inc. v. Kati Roll & Platters, Inc., No. 10-3620 (GEB), 2011 WL 3583408 (D.N.J. Aug. 3, 2011), the plaintiff argued for sanctions after the defendant pulled down infringing materials from his Facebook page and altered his Facebook profile photo, removing a profile picture that included the distinctive trade dress at issue in this case. The court ultimately decided against sanctions, but did order the defendant to re-post the photo in question, as follows.

  • The court first set out to establish whether or not the defendant’s actions could be considered as spoliation, citing the standard of review for the four criteria in spoliation. The four criteria include the party’s control over the evidence, apparent suppression or withholding of evidence, relevance of the destroyed evidence, and that it be “reasonably foreseeable” that the evidence would be required for discovery at a current or later date.
  • The altered profile photograph was deemed by the court to be relevant, and under the control of the defendant. However, whether that evidence was suppressed or withheld, and whether it was foreseeable that it would be required as part of discovery, remained at issue.
  • The plaintiff argued that the defendant should be sanctioned for failing “to preserve his Facebook pages in their original state” and “wanted PDFs of these pages prior to their being taken down”, but the court maintained that because these infringing pages had been removed at the plaintiff’s earlier request, it “would be unjust” to sanction the defendant for those actions.
  • The court also noted that Facebook profile photos are changed as often as weekly by those who use the site regularly, and that the defendant could not have known that changing his photo would have been an issue. “It would not have been immediately clear that changing his profile picture would undermine discoverable evidence,” the court maintained.
  • As result, the court declined to order sanctions against the defendant. Instead, the defendant was ordered to re-post the Facebook profile photo in question “for a brief time,” including the trade dress at issue (as they “ha[d] not been destroyed” and were “attached in several PDFs” to the court), so that the plaintiff might print whatever photos and Facebook pages it wishes. Afterward, the defendant was told to replace the photo again with a non-infringing image.

So, what do you think? Was the court’s decision fair, or should the defendant have been sanctioned for spoliation? Please share any comments you might have or if you’d like to know more about a particular topic.