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Dispute Over Scope of Preservation Obligation Leads to Partial Sanctions For Now: eDiscovery Case Law

In E.E.O.C. v. GMRI, Inc., No. 15-20561-CIV-LENARD/GOODMAN (S.D. Fla. Nov. 1, 2017), Florida Magistrate Judge Jonathan Goodman, in a very lengthy and detailed order, denied in part and granted in part the plaintiff’s motion for sanctions for spoliation of paper applications, interview booklets, and emails.  Judge Goodman did not grant the request for most-severe type of relief sought – permissible inferences at the summary judgment and trial stages – but did rule that the plaintiff could “present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury” and “argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2))”, which could lead to the jury inferring that the lost ESI was unfavorable to the defendant.

Case Background

In this age discrimination case filed by the Equal Employment Opportunity Commission (EEOC) against the defendant owner of a chain of restaurants, the investigation by the EEOC began as an investigation of two employee complaints against the defendant’s Coral Gables restaurant location in late 2010.  At that time, the EEOC notified Seasons 52 (the restaurant chain owned by the defendant) of the charges and explained the EEOC’s recordkeeping regulations.  Then, on August 31, 2011, the EEOC issued an “expansion letter” and notified Seasons 52 that it was expanding the investigation to include Seasons 52’s hiring practices throughout the nation as they affect a class of individuals, applicants for employment, because of their ages.  The EEOC also sent a follow-up letter, dated the next day, which requested additional information and which referenced “expansion” of the case.  In July 2013, the EEOC issued Letters of Determination finding that Seasons 52 had engaged in age discrimination and filed its complaint in February 2015.

However, there was dispute over the August 31 2011 letter, which the defendant, (during an October 11, 2017 evidentiary hearing) claimed it never received.  The defendant acknowledged it did receive the September 1 2011 letter.  Nonetheless, the defendant contended that it was under a duty to preserve for only one restaurant in Coral Gables because the two complaints that triggered the EEOC investigation concerned that sole location. However, the plaintiff contended that Seasons 52 had a duty to preserve for all restaurants in the country because the scope of the investigation expanded into a national investigation encompassing all Seasons 52 restaurants.  So, while the defendant issued a litigation hold in Coral Gables in December 2010, it did not issue litigation holds for other locations until at least May 2015.  As a result, the defendant failed to preserve paper applications, interview booklets and emails in most of its locations (the order has WAY more detail on the extent of the failure to preserve).

Stating that the plaintiff “has come up empty handed”, the defendant filed a summary judgment motion and the plaintiff filed its motion for sanctions shortly thereafter, which the defendant contended was a last minute attempt to save the case.

Judge’s Ruling

Judge Goodman began by referencing a song from John Hiatt, who wrote a song released in 1995 called Shredding the Document, as being “at the heart of the sanctions motion being considered here”.  He rejected the defendant’s argument that the plaintiff’s motion was in direct response to the defendant’s summary judgment motion, noting that it was filed only two days after and it was “highly likely” that the plaintiff began preparing the sanctions motion long before it received the defendant’s summary judgment motion.

With regard to the dispute over the August 31 2011 letter, Judge Goodman, observing that “Seasons 52’s witnesses unequivocally testified that they never received it and that their records and databases do not contain it”, that “they concede receipt of other letters” and that the zip code on the letter was incorrect, ruled: “The EEOC has not established by a preponderance of the evidence that Seasons 52 received the so-called August 31, 2011 expansion letter.”

However, noting that “The September 1, 2011 letter made explicit reference to an ‘expansion’ of the case, and Seasons 52 was regularly forwarding information about 10 restaurants and then added another restaurant…to the ongoing production”, Judge Goodman found that “Seasons 52 was therefore under a duty to preserve relevant materials for those 11 restaurants” and found their “lack of logical follow-through to be unacceptable.”

Noting that “the EEOC’s expert witness was still able to reach conclusions even without certain paper applications and interview booklets”, Judge Goodman determined that “some prejudice” had occurred, but that “Seasons 52 certainly has a logical argument that the missing materials were not critical or crucial to the EEOC’s case, which is why the Undersigned is not now granting the EEOC harsh-type sanctions like a permissible adverse inference.”  As a result, Judge Goodman did not grant the request for most-severe type of relief sought – permissible inferences at the summary judgment and trial stages – but did rule that the plaintiff could “present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury” and “argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2))”, which could lead to the jury inferring that the lost ESI was unfavorable to the defendant.

So, what do you think?  Should juries decide spoliation is unfavorable to a party without judicial instructions to that effect?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

Process This! – Close Outlook Before Compressing or Zipping PST Files for Processing: eDiscovery Best Practices

Having recently experienced this with a client, I thought I would revisit this helpful tip.  This is one of the tips Tom O’Connor and I will be covering this Friday – E-Discovery Day – on our webcast Murphy’s eDiscovery Law: How to Keep What Could Go Wrong From Going Wrong at noon CST (1:00pm EST, 10:00am PST).  Click here to register for Friday’s webcast.

As you may know, at CloudNine (shameless plug warning!), we have an automated processing capability for enabling clients to load and process their own data – they can use this capability to load their data into our review platform.  They can even process and load data straight into Relativity using our Outpost for Relativity module.

Regardless whether they load data into CloudNine or Relativity, most of our users are using the processing capability to process emails, usually from Outlook Personal Storage Table (PST) files.  Even though increased volumes of social media and other types of electronically stored information, emails are still predominant in eDiscovery.  And, for users trying to process and load that data, we get one issue more than any other when it comes to processing those Outlook emails:

They still have Outlook open with the PST file opened when they attempt to upload that PST file or when they try to create a ZIP file containing the Outlook PST.

When that happens, the resulting ZIP file that is created (either by the user or by our client application if the data is not already contained in an archive file) will almost invariably be corrupted or empty.  Either way, this will result in a failure during processing of the loaded data – because the data being processed will simply be corrupt.

This is not only true for CloudNine processing, this is also true for any application that you use for processing, such as Law PreDiscovery.  So, before attempting to create a ZIP (or RAR or other type of archive) of a PST file (or before you upload it to a platform like CloudNine for processing), make sure that Outlook is closed or at least that the PST file is closed within Outlook.  That’s the best way to have a positive “outlook” to discovering emails.  Get it?  :o)

So, what do you think?  Is email still the predominant source of discoverable ESI in your organization?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Addressing the Inconsistent Email Address: eDiscovery Best Practices

I recently had a client who was trying to search a fairly sizable archive in CloudNine (about 2.75 TB comprised of several million documents) and searching for emails to and from a given custodian.  That search proved a little more challenging than expected due to a legacy Microsoft Exchange attribute.  Let’s take a look at that scenario, substituting a generic email address.

If you have John Dough, who is an employee at Acme Parts, his email address might look like this: jdough@acmeparts.com.  And, for many emails that he sends to others, that’s how his email address might be represented.  However, it could also be represented this way, especially in his Sent Items folder in Exchange:

/O=ACME PARTS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=jdough

Why does it look like that and not like the “normal” email address that ends in “acmeparts.com”?  Because it’s a different type of address.

The first example – jdough@acmeparts.com – is an SMTP address.  This is the email address you commonly use and refer to when providing others your email address.  It’s probably even on your business card.

The second example – /O=ACME PARTS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=jdough – is the Exchange x500 address – it’s the internal Exchange address for your account.  So, why does that address exist?

It’s because when Microsoft decided to change the way servers were managed in Exchange 2007, they retained a single administrative group for backwards compatibility and stored details of Exchange 2007 servers there.  The legacyExchangeDN property of the mailbox in Active Director stores this information and, depending on the setup and version of the Exchange server when the emails are pulled from it, could be used as the address shown on some emails (especially when they’re received from internal parties).  I still see it pop up occasionally with some of the email collections that we encounter.

Fun fact for you: The value “FYDIBOHF23SPDLT” after “Exchange Administrative Group” is actually an encoded version of the string “EXCHANGE12ROCKS” with each character replaced with the letter that follows it in the alphabet (E->F, X->Y etc.).

So, what does that mean to you?  It can mean a more challenging effort to locate all of the emails for a given custodian or key party.

To address the situation, I generally like to perform a search for “exchange administrative group” or “FYDIBOHF23SPDLT” in the email participant fields (i.e., To, From, Cc, Bcc).  If I don’t get any hits, then I don’t have any Exchange x500 addresses and there are no worries.

If I do get hits, then I have to account for these email addresses.  Both the SMTP and Exchange x500 address have at least one thing in common – the custodian name.  Typically, that’s first initial and last name, but there are variations as some organizations (if they’re small enough) use just the first or last name for email addresses.  And, if you have two people with the same first initial and last name, you have to distinguish them, so the address could include middle initial (e.g., jtsmith) or number (e.g., jtsmith02).

In its Search form, CloudNine performs an autocomplete of a string typed in for a field, identifying any value for the field that contains that string.  So, an autocomplete for “jdough” in the To, From, Cc or Bcc fields would retrieve both examples at the top of this post if they were present – and also any personal email addresses if he used his first initial and last name on those too.  If it seems apparent that all “jdough” entries are associated with the custodian you’re looking for, then the search can be as simple as “contains jdough” (e.g., From contains jdough to get all variations in the From field).  If it looks like you have email addresses for somebody else, then you may have to search for the specific addresses.  Either way, you can use that technique to ensure retrieval of all of John Dough’s email address variations.

So, what do you think?  Have you encountered Exchange x500 addresses in your email collections? As always, 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Houston, We Have a Problem – Court Specifies Jury Instructions to Address Spoliation Findings: eDiscovery Case Law

In GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS (D. Delaware, Oct. 5, 2017), Delaware District Judge Leonard P. Stark chose to determine the preliminary and final jury instructions he would give with respect to the defendant’s spoliation for the “intentional and admitted deletion of emails” ruled on earlier, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial, rather than respond to the four spoliation-related questions posed by the plaintiff or defendant.

In this case with claims of monopolization, attempted monopolization and common-law tortious interference with business relations against the defendant, the defendant received “punitive sanctions in the amount of $3,000,000” for the “intentional and admitted deletion of emails” by the defendant’s Senior Vice President of Sales.  After reviewing the parties’ joint status report, as well as other materials submitted throughout the case, and having discussed the issues with the parties on multiple occasions, including during the pretrial conference, Judge Stark chose to determine the preliminary and final jury instructions he would give, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial.

Judge Stark identified this language as the “preliminary instruction {that} will be provided to the jury”:

“SPOLIATION

The law requires that parties preserve relevant documents, including emails, when litigation is pending or contemplated. This is because, when one party sues another, each side has the right under the law to inspect or obtain production of internal documents and other evidence from the other party.

The destruction or material alteration of evidence or the failure to preserve documents or emails for another party’s use as evidence in pending or reasonably foreseeable litigation is referred to as “spoliation.”

In this case, it has been determined that Plantronics committed spoliation.

It has also been determined that Plantronics’ spoliation was not accidental and that evidence relevant to this case may have been destroyed by Plantronics. As such, during this trial, you may hear questions and answers from the parties referencing missing or destroyed emails and Plantronics’ spoliation of evidence. While the exact contents of the spoliated evidence are unknown, you, the jury, will be permitted – but not required – to infer that the lost documents were relevant and favorable to GN’s case and/or harmful to Plantronics’ case.

*3 You will learn during trial that Don Houston, a former employee at Plantronics, failed to preserve certain emails after his duty to preserve them arose. You will also hear that efforts were made to recover the emails that Mr. Houston failed to preserve and that additional emails were produced to GN through these recovery efforts.

I will have further instructions on these matters for you at the conclusion of the trial.”

Judge Stark identified this language as the “final instruction {that} will be provided to the jury”:

“SPOLIATION

I instruct you that Plantronics failed to preserve evidence after its duty to preserve arose. This failure to preserve is known as ‘spoliation of evidence.’ In other words, spoliation is the destruction or material alteration of evidence or the failure to preserve evidence for another’s use in pending or reasonably foreseeable litigation.

Based on Plantronics’ spoliation, you may, but are not required, to presume that the lost evidence would have been relevant and helpful to GN’s case and/or would have been harmful to Plantronics’ case. Alternatively, you may infer that the evidence not produced would merely have been duplicative of, or similar to, the evidence before you.

In other words, your role is to determine whether Plantronics’ spoliation tilted the playing field against GN. If so, the permission given to you by the Court to infer that the missing documents would have been relevant and helpful to GN and/or harmful to Plantronics is designed to allow you to balance that playing field, should you feel it is necessary.

It is up to you to decide the extent to which the lost evidence was relevant and helpful to GN and/or harmful to Plantronics. Of course, it is impossible to know exactly what evidence was lost – although the parties have tried – so you must make these determinations to the best of your ability based on all of the facts and circumstances of this case. You must then decide how much weight and effect to give to your belief about spoliation in reaching your verdict.”

Judge Stark also identified the 16 stipulations that he would read.  Four of those stipulations would only be read “if, no later than Saturday, October 7 at 3:00 p.m., Plantronics submits an affidavit providing the evidentiary basis for the numerical figures contained in these paragraphs, all of which the Court adopted based on Plantronics’ representations.”

So, what do you think?  Is a jury instruction a sufficient sanction for the “intentional and admitted” spoliation by the defendant?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Adds Some of the Custodians Requested by Plaintiffs to Discovery, But Not All: eDiscovery Case Law

In Mann, et al. v. City of Chicago, et al, Nos. 15 CV 9197, 13 CV 4531 (N.D. Ill. Sep. 8, 2017), Illinois Magistrate Judge Mary M. Rowland granted in part and denied in part the plaintiffs’ Motion to Compel the defendant to include certain custodians in their email search, ordering the defendant to search emails of five additional custodians (including the Mayor of Chicago), but not requiring the defendant to search emails for an additional three custodians requested by the plaintiff.  Judge Rowland also denied the plaintiffs’ request for sanctions, finding that the defendant’s conduct was not sanctionable.

Case Background

In this consolidated case involving alleged unconstitutional Chicago police (CPD) practices at “off the grid” facilities (including one known as “Homan Square”), the parties agreed on several discovery related items, including search terms and the majority of custodians.  The parties also agree that discovery would include the Mayor’s Office, but “reached an impasse” on which custodians in the Mayor’s Office should be searched, with the plaintiffs’ arguing that Mayor Emanuel and ten members of his senior staff were relevant to the plaintiffs’ Monell claim.  In response, the defendant argued that the plaintiffs’ request was burdensome, and that the plaintiffs “have failed to provide any grounds to believe that the proposed custodians were involved with CPD’s policies and practices at Homan Square”, proposing instead that it search the two members of the Mayor’s staff responsible for liasoning with the CPD and leave “the door open for additional custodians” depending on the results of that search.

Judge’s Ruling

With regard to the parties’ dispute over whether the Mayor was a “policymaker” for the City with regard to the use of the Homan Square facility, Judge Rowland stated: “On summary judgment or at trial, Plaintiffs will have to provide evidence that ‘the unlawful practice was so pervasive that acquiescence on the part of policymakers was apparent and amounted to a policy decision’ or that a policymaking official responsible for final government policy on the police practices at issue directed the particular conduct that caused Plaintiffs’ harm…But at this stage Plaintiffs do not have to establish that the Mayor was a policymaker or had final authority on the police practices at issue or that there is a ‘nexus’ between the custodians of the emails and CPD’s alleged activities at Homan Square.”

Judge Rowland also noted that the defendant had identified the two custodians “as the most likely holders of responsive emails…But in light of the allegations in the complaint, the Mayor and his upper level staff also might have responsive emails.”  She also rejected the defendant’s argument that the additional custodians would be burdensome, noting that “[t]he City does not offer any specifics or even a rough estimate about the burden.”

As a result, Judge Rowland ordered the defendant to search emails of five additional custodians (including the Mayor of Chicago), but did not require the defendant to search emails for an additional four custodians requested by the plaintiff “because of the short tenure of the staff person or the time during which the person held the position”.  She also denied the plaintiffs’ request for sanctions against the defendant, stating: “The Court does not view the City’s conduct as sanctionable and both parties’ diligent efforts to work together shows that ‘other circumstances make an award of expenses unjust.’”

So, what do you think?  Might the defendant have had a better result if it had provided at least an estimate of the burden?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

Citing SCA, Court Denies Motions to Compel Microsoft, Google and Yahoo to Produce Emails: eDiscovery Case Law

In PPG Indus., Inc. v. Jiangu Tie Mao Glass Co., Ltd., No. 2:15-cv-965 (W.D. Pa. July 21, 2017), Pennsylvania District Judge Mark R. Hornak denied the plaintiff’s Motions to Compel third parties Microsoft, Google and Yahoo to Produce Responsive Documents Pursuant to their Subpoenas, finding that “resolution of this case begins and ends with the Stored Communications Act (‘SCA’), which generally provides that ‘a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.’”

Case Background

In this case where one of the plaintiff’s employees was arrested and charged with theft of trade secrets and ultimately committed suicide while under house arrest, the plaintiff obtained consent for the production of all materials related to the case from the employee’s brother, who was also the executor and beneficiary of his estate.  After receiving permission from the Court to conduct limited pre-answer discovery and serve specified subpoenas, the plaintiff served subpoenas on Microsoft, Google and Yahoo seeking e-mail communications received and sent from the employee’s accounts with each company.  When Microsoft, Google and Yahoo refused to provide the requested communications, the plaintiff filed the Motions to Compel.

Judge’s Ruling

Judge Hornak began his ruling by stating: “The resolution of this case begins and ends with the Stored Communications Act (‘SCA’), which generally provides that ‘a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.’”  He also noted, however, “under the SCA a provider ‘may divulge the contents of a communication’ in certain circumstances, including when it has ‘the lawful consent of the originator or an addressee or intended recipient of such communication.’ § 2702(b)(3).”

The plaintiff argued that because the executor of the employee’s estate had consented to production of the emails, the SCA’s exception for the “lawful consent of the originator,”§ 2702(b)(3), applies and argued that under Pennsylvania law an executor has the authority to handle a decedent’s digital assets, including his electronic communications.  However, Judge Hornak stated that “First, it is plain that the SCA does not provide an exception to its general prohibition on disclosure for civil subpoenas…Second, even when one of the exceptions to prohibited disclosures delineated in§ 2702(b) applies, the SCA nonetheless does not require providers to disclose communications. To begin, § 2702(b) specifically states that providers ‘may’ divulge communications if an exception applies; it does not state that they ‘must’ do so.”

Judge Hornak did note that the plaintiff “could still gain access to the emails in Thomas Rukavina’s Microsoft account should it choose to pursue them. Microsoft stipulated at argument and in its papers that if the Pennsylvania court with jurisdiction over Thomas Rukavina’s estate concludes that Robert Rukavina’s consent is ‘lawful consent’ under § 2702(b)(3), Microsoft will voluntarily divulge the emails PPG seeks.”  He also noted that the plaintiff “could also potentially obtain the emails in Thomas Rukavina’s Yahoo and Google accounts by identifying the individual(s) who have been accessing the accounts since Thomas Rukavina’s death” (since both providers had indicated that his accounts had been accessed on “numerous” occasions since his death).

However, Judge Hornak’s parting notice was that, in the case of the Yahoo account, the employee had “repeatedly consented to Yahoo’s Terms of Service (‘TOS’), which included…a ‘No Right of Survivorship and Non-Transferability’ provision… [which] explains that any rights Thomas Rukavina had to the contents of his Yahoo account terminated upon his death.”  So, he would have been unlikely to order Yahoo to produce the emails under any circumstances.

Regardless, for the reasons noted above, Judge Hornak the plaintiff’s Motions to Compel against all three third parties.

So, what do you think?  Is it time to rewrite or update the 31 year old Stored Communications Act?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Orders Plaintiff to Produce Native Format Version of Email Potentially Altered: eDiscovery Case Law

In Lifetouch National School Studios, Inc. v. Roles, No. 3:15-cv-234 (W.D. P.A., Dec. 15, 2016), Pennsylvania District Judge Kim R. Gibson granted the portion of the defendant’s motion to compel associated with the request for the plaintiff to produce all copies of a potentially altered email in native format circulated within its organization or any of its agents.

Case Background

In this breach of contract case, the plaintiff alleged that the defendant had accepted a sales position with a competitor of the plaintiff company (Strawbridge Studios, Inc.) and solicited the plaintiff’s employees and customers in violation of her employment agreement.  During discovery, two different versions of a particular email were produced: one received by a client where the client wrote “Strawbridge[,] No contract.” and the other received by Strawbridge forwarded by an employee (Joseph Segall) of the plaintiff where the client had written “Strawbridge[,] No contract. Beth Roles.”

Both individuals who wrote the emails testified under oath that they did not include the defendant’s name in the emails, leaving the defendant to request leave to amend her counterclaim, alleging that the Strawbridge email was altered by the plaintiff to interfere with her employment at Strawbridge.  The Court granted as unopposed the defendant’s motion for leave to amend.  The defendant then filed a motion to compel production of, among other things, copies of the email in native format from all individuals at the plaintiff’s organization to whom it was forwarded or sent.

Judge’s Ruling

Judge Gibson first commented on the relevancy of the email, stating “Based on Roles’s counterclaims, this information falls within the scope of relevant material. Roles’s counterclaims are premised on the allegation that Lifetouch intentionally altered the August 25, 2015 email. Documents illustrating how that email was circulated within Lifetouch relate to whether Lifetouch did in fact alter the August 25, 2015 email, and—if so—how that alteration occurred.”

When assessing the appropriateness of discovery of the emails, Judge Gibson, noting that the plaintiff appeared to have abandoned earlier privilege objections for the emails, noted “Lifetouch appears to argue that it has already produced enough information regarding the emails. Lifetouch states that Roles ‘already has a copy of the email from Segall to Strawbridge,’ and Lifetouch goes on to explain that it has produced PDF versions of the email and the native form of the email as forwarded from Segall to Strawbridge. Further, Lifetouch argues that ‘a copy of that email in native form is not only unreasonable, but not likely to lead to the discovery of admissible information based on those emails that have already been produced.’”

In response, Judge Gibson said “These arguments are insufficient to avoid discovery. As an initial matter, the fact that Roles already has a copy of the August 25, 2015 email has no bearing on whether Lifetouch altered the email. The relevance of the documents Roles seeks is derived from their circulation within Lifetouch; a complete picture of how the email was received, discussed, and ultimately sent—or even discussed after it was sent—would be relevant to Roles’s claims. Thus, the fact that Roles already has a copy of the email is irrelevant. And Lifetouch’s argument that it should not have to produce these documents because it already produced a copy of the email from Segall to Strawbridge is unpersuasive for the same reasons.”

Judge Gibson also noted that, while arguing that production in native format is unreasonable, “Lifetouch does not explain what about native production would be unreasonable. Furthermore, Lifetouch specifically agreed ‘to produce . . . electronic documents in native format’ in the parties’ Rule 26(f) Report.”

As a result Judge Gibson granted the portion of the defendant’s motion to compel associated with production of the potentially altered email in native format and also ruled that “attorneys’ fees for this portion of Roles’s Motion to Compel are proper” and ordered the defendant to submit an affidavit detailing the attorneys’ fees she incurred in bringing her Motion to Compel.

So, what do you think?  Was it appropriate to order production of the email in native format?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Plaintiff’s Intentional Deletion of Emails to Competitors Leads to Order to Produce Gmail Account: eDiscovery Case Law

In Cohn et. al. v. Guaranteed Rate, Inc., No. 14-9369 (N.D. Ill., Dec. 8, 2016), Illinois District Judge John Robert Blakey granted in part and denied in part the defendant’s motion to compel discovery, for spoliation sanctions, and to extend the discovery deadline, finding that the defendant’s request for dismissal of the plaintiff’s claims and entry of default judgment or issuance of an adverse inference instruction was “not commensurate with the harm implicated here”, opting instead to require the plaintiff to provide full access to her Gmail account to the defendant.

Case Background

In this breach of contract case, the plaintiff was originally hired by the defendant in 2012, which also purchased the assets of the plaintiff’s company.  Part of the employment agreement executed by the plaintiff “expressly prohibited” her from using or disclosing confidential information or from soliciting employees or customers of the defendant.  By November 2013, the relationship between the parties had deteriorated, with the plaintiff referencing an expected lawsuit and indicating that she had retained counsel over perceived breaches of the agreement by the defendant; the plaintiff’s counsel also sent a letter to the defendant in February 2014 regarding those perceived breaches.  In turn, the defendant’s counsel sent letters to the plaintiff, also threatening litigation.  The plaintiff left the defendant’s employment in August 2014 and filed suit against the defendant in November 2014.

The defendant requested documents from the plaintiff (including emails from her Gmail and LinkedIn accounts) reflecting the plaintiff’s communications with any of the defendant’s competitors.  The plaintiff responded that, to the extent documents responsive to those requests existed, they would be produced; however, she did not produce a single message from her Gmail account with any of those competitors.

The plaintiff’s failure to produce this material forced the defendant to serve third party discovery requests on a number of its competitors, and those competitors’ document productions contained numerous messages to and from the plaintiff that she had never produced.  In conversations with one competitor, the plaintiff “ask[ed] that [they] turn to [her] gmail account” and she instructed the competitor to “Hide the info I sent was [sic] the max that my atty will allow—well actually more. I simply cannot put more in writing.”  The plaintiff also instructed her subordinate to begin communicating using their personal email addresses and to “delete our grate [Guaranteed Rate] emails to permanent tras[h].”

The defendant filed the present motion, requesting the dismissal of the plaintiff’s claims, entry of default judgment, or the issuance of adverse inference instructions at trial. Alternatively, the defendant requested native production of the plaintiff’s entire Gmail account, production of her Gmail log-in and password credentials, production of her work and personal computers to enable pursuit of a forensic inspection, and issuance of an injunction preventing the plaintiff from altering, destroying, or modifying any evidence in any way.  The plaintiff, in responding, admitted that she “deleted the subject emails with third-parties from her personal Gmail account in November of 2013, April-June of 2014, and July of 2014.”

Judge’s Ruling

Relying on Federal Rule 37(e) and considering the plaintiff’s duty to preserve, Judge Blakey stated “The Court finds that Cohn had a duty to preserve her communications with GRI’s competitors by at least November 30, 2013. By that point Cohn was making explicit references to legal action against GRI and its officers, and she had retained the attorney who represents her in this lawsuit…She was also making overtures to certain of GRI’s competitors by that time…In light of those facts and her clear obligations under the APA and BMA, Cohn and her counsel should have been able to ‘foresee’ by November of 2013 that her communications with GRI’s competitors ‘would be material (and thus relevant) to a potential legal action.’”

Judge Blakey also referenced the plaintiff’s admission of email deletions as “an obvious breach of her duty”.  As for proof of harm suffered by the defendant, Judge Blakey indicated that the “prevailing rule is that bad faith destruction of a document relevant to proof of an issue at trial gives rise to a strong inference that production of the document would have been unfavorable to the party responsible for its destruction.”  And, Judge Blakey, referencing the plaintiff’s instructions to one of the competitors to “hide the info” she sent, ruled that the information was deleted in bad faith.

With regard to remedy, however, Judge Blakey ruled that “GRI’s request for the dismissal of Cohn’s claims and entry of default judgment is not commensurate with the harm implicated here”, ordering instead “that, at a minimum, GRI must be given full access to Cohn’s Gmail account.”  He also denied the defendant’s request for an adverse inference instruction without prejudice, hoping the production of Cohn’s full Gmail account will “obviate the need for such instructions”.

So, what do you think?  Did the court go far enough in its sanctions?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

This is a Non-Political Post: eDiscovery Trends

At the outset, I feel that I should state that, given that this post is about the Hilary Clinton emails and the FBI handling of them.

In his latest post (E-Discovery Lessons from the Huma Abedin E-Mails), Craig Ball takes a look at the eDiscovery implications regarding the handling of the Huma Abedin emails and his distaste for FBI Director James Comey’s handling of them.  Craig states: “‘Reckless’ doesn’t begin to describe Comey’s self-indulgent decision to release information about a situation he clearly does not yet grasp, in a manner that elevates Jim Comey above longstanding Justice Department policy and the integrity of a Presidential election.”

Nonetheless, regardless of political leanings, Craig notes that his post “will not be a political screed, so while I always welcome critical and substantive comments on anything I write, please hew to the e-discovery aspects of same.  Please.”  Of course, at least one commenter (so far) still questioned the political intent of his post, characterizing Craig’s comments as “partisan”.  Not surprisingly, there were already 20 total comments on Craig’s post in less than a full day (including mine).

Craig’s post, and the comments back and forth are well worth reading.  One of the eDiscovery discussion points related to the cross-collection correlation of email messages – which Craig wrote about here and we covered here, with back and forth discussion between Craig and our CTO, Bill David – and the challenge of doing that when the Clinton emails were produced to the State Department in paper (yes, paper) format.  There was also a discussion as to whether the Clinton claim that “more than 90% of those emails should have already been captured in the State Department’s email system” was true and could have eliminated most of the email matching effort to determine whether there is significant new information in the Abedin emails that bear investigating.

And, to think this latest round was initiated because of our social media gone wrong poster child, Anthony Weiner.  Some people never learn to think before they hit send.

Bill Dimm provided a link to Hilary Clinton’s fact sheet regarding the emails in one of his comments, which answered the question as to why Clinton produced printed copies to the State Department instead of ESI, noting that the Foreign Affairs Manual of the State Department provides this guidance with regard to how to preserve e-mail records:

“Until technology allowing archival capabilities for long-term electronic storage and retrieval of E-mail messages is available and installed, those messages warranting preservation as records (for periods longer than current E-mail systems routinely maintain them) must be printed out and filed with related records.”  [5 FAM 443.3].

So, our government is just as behind as the rest of the legal profession (if not more) with regard to production formats.  Big surprise.

We’ve already discussed one area where eDiscovery might impact the coming election.  Maybe this is another.

So, what do you think?  Are you sick of hearing about the election yet?  Me too!  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: eDiscovery Case Law

In Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016), Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored information on backup tapes “would result in an undue burden and cost to Defendant”, that the plaintiff “has not met his burden to show good cause” to overcome the defendant’s undue burden and cost argument, and that “the archived emails are ‘discoverable’ under Fed. R. Civ. P. 26(b)(1)”, ordered the defendant to “facilitate access to the discovery”, but “only at Plaintiff’s expense, payable in advance”.

Case Background

In this case, the plaintiff sought production of all emails and text messages concerning the plaintiff between employees, agents or attorneys of the defendant as well as other emails related to Group Health, the National Practitioners Data Bank [NPDB] or any former employer of the plaintiff.

The defendant objected to the request on the grounds that it was overbroad and burdensome, indicating that it did not have an email archiving system, but instead archived emails on a monthly basis on physical backup tapes, as part of a disaster relief program. The defendant indicated that in order to retrieve all responsive discovery, it would need to retrieve, restore, and review each backup tape, which at 14 hours per tape would require 1,400 hours in labor and $157,500 in costs.  The defendant also indicated that it had already searched the live email accounts of several custodians, was producing non-privileged responsive documents that it had found in those searches and referred to the emails previously produced with the defendant’s initial disclosures.

In response, the plaintiff filed a Motion to Compel Discovery Responses, indicating in a declaration that, as soon as July 2013, the plaintiff notified the defendant’s attorney of his intent to file a lawsuit (the defendant’s attorney, in his own declaration, stated he had no recollection of those conversations).

Judge’s Ruling

While acknowledging that the emails sought by the plaintiff were discoverable, Judge Bryan stated that “Defendant has met its burden to show that retrieving the electronically stored information would result in an undue burden and cost to Defendant.”  Judge Bryan also found that the plaintiff “has not met his burden” to show good cause, stating: “Tellingly, Plaintiff does not name individuals that Plaintiff believes exchanged emails about Plaintiff, nor does Plaintiff describe suspected content of the emails. Plaintiff does not even represent with any surety that responsive emails exist. Because Plaintiff has not met his burden for good cause, compelling production of the discovery at expense to Defendant is not warranted.”

However, because the archived emails were “discoverable” under Fed. R. Civ. P. 26(b)(1), Judge Bryan ruled that “upon a request by Plaintiff, Defendant should facilitate access to the discovery, but should do so only at Plaintiff’s expense, payable in advance. Plaintiff should be responsible for all costs, such as retrieving and restoring the backup tapes to an accessible format, except for costs relating to Defendant’s review of the information for privileged material (which is like any other discovery request, e.g., the live emails)…Defendant should not otherwise be compelled to produce the archived emails, and to that extent Plaintiff’s motion should be denied.”

So, what do you think?  Should the defendant have been required to bear the cost of restoring the backup tapes for discovery?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.