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eDiscovery Year in Review: eDiscovery Case Law, Part 2
 

As we noted yesterday, 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 eDiscovery cost reimbursement, form of production and international discovery issues.  But, there’s many more cases to recap.  As Lt. Col Frank Slade would say, “I’m just getting warmed up”.  Whoo Ah!

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!

PRIVILEGE / INADVERTENT DISCLOSURES

Decisions regarding what information is privileged and whether privilege is waived when inadvertent disclosures occur is always a hot issue for debate.  That was no different in 2011.  And, if you receive an inadvertent disclosure and don’t disclose it, you can get kicked off the case.  Here are five cases related to privilege and inadvertent disclosures:

Privilege Waived for Produced Servers.  Fontainebleau Resort, LLC (FRLLC) produced two servers without conducting any review of the materials, at least one of which had previously been produced to other banks involved in the underlying litigation.  Would they be required to waive privilege on those servers?

When is Attorney-Client Communication NOT Privileged? One answer: When it’s from your work email account, and your employer has a written policy that company email is not private and subject to audit. Oh, and you’re suing your employer.

Read Inadvertent Email, Get Disqualified from Case.  Lesson of the day: When you receive an inadvertently sent privileged email, read it and don’t disclose receipt of it, you can get kicked off the case. In this case, the court disqualified defendant's in-house and outside counsel for their handling of a disputed privileged email that was inadvertently sent by the plaintiffs' counsel to the defendant and shared with defendant’s outside counsel.

Defendants' Privilege Waived for "Completely Ineffective" Discovery Procedures.  In a case over purported building and zoning code violations, an Illinois District Court has found the defendants responsible for inadvertently producing several privileged documents during discovery and for a failure to correct the problem in a timely manner, and has ordered the privilege to be waived.

Court Rules Against Exclusion of Privileged Email. A District of Columbia court has ruled against exclusion of a privileged email that was inadvertently produced by the defendant, ruling that the defendant's actions before and after the discovery of the email's production pursuant to Federal Rule of Civil Procedure 26(b)(5)(B) were not sufficient to ensure protections under Federal Rule of Exclusion (FRE) 502(b)(3), in a case involving alleged violations of the District of Columbia Whistleblower Act.

PROPORTIONALITY

With the explosion of data in the world and rising costs for preserving, collecting, reviewing and producing that data, it’s not surprising that eDiscovery costs are spiraling upward, causing many to cry “uncle” and making the word “proportionality” become quite trendy, with parties and even courts.  Here are four cases where proportionality of eDiscovery was an issue.  Oh, and if you can’t complete production until after the trial is over, that’s probably too late.

Completing Production AFTER Trial is Too Late.  In this case, Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia denied the defendant’s request for consideration that the District had waived all objections, including privileges, and ordered production within one week of the close of trial. In denying the motion, the court likened the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes.”

KPMG Denied in Request for “Proportionality Test” to Preservation.  In this case, KPMG sought a protective order to narrow its preservation obligation scope to only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. With that request in hand, the court considered KPMG's request for proportionality as it applied to its preservation obligations.

Court Grants Adoption of Model Order for Patent Case.  Model orders to limit discovery for patent cases have gained popularity in various jurisdictions, including a recent order proposed in Texas. Here’s one patent case where the defendant sought to adopt such a model order.

Plaintiff Not Required to Review Millions of Pages of Unallocated Space.  In this case, the court affirmed the Magistrate Judge’s order which excused plaintiff from having to review and produce millions of pages of documents recovered from unallocated space files due to the extreme burden and cost to do so.

EDISCOVERY SERVICE DISPUTES

It’s a darn shame when law firms can’t get along with their corporate clients or with the vendors they hired.  Perhaps the most discussed case of the year was the eDiscovery malpractice case involving McDermott, Will & Emery, with posts in eDiscovery Daily here, here and here.  Here are two cases where the actual eDiscovery services being provided were in dispute:

eDiscovery Malpractice Case Highlights Expectation of Higher Standards.  Having noted in eDiscovery Daily that competency ethics are no longer just about the law and that competency in eDiscovery best practices is expected from the attorneys and any outside providers they retain, this case may be the first eDiscovery malpractice case ever filed against a law firm (McDermott Will & Emery) for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.

Sometimes the Vendor Sues the Law Firm – And Wins!  The eDiscovery malpractice case involving McDermott, Will & Emery associated with inadvertent production of 3,900 privileged documents has captured considerable interest in the industry and this blog.  Sometimes, the “shoe is on the other foot”, so to speak.

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!

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.

eDiscovery Year in Review: eDiscovery Case Law, Part 1
 

Happy New Year from all of us at CloudNine Discovery and eDiscovery Daily!  If 2012 is like recent years, there should be plenty of interesting developments in the eDiscovery industry.

However, before we look ahead to the coming year, it’s worthwhile to look back at what transpired in 2011 to see what trends began to emerge last year.  And, there is no better way to do that than to review key cases during the year.  eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases!  Needless to say, a lot happened in the courtroom that impacted the eDiscovery world.

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!

EDISCOVERY COST REIMBURSEMENT

One of the emerging trends for 2011 was the growing number of cases where the prevailing party was awarded reimbursement of eDiscovery costs.  Maybe that will change the “preserve and produce everything” mentality of some attorneys?  Here are four cases where this issue was addressed:

Sue Me and Lose? Pay My Costs.  In a ruling that may give some plaintiffs' lawyers pause, a federal judge in Pittsburgh has ruled that the winning defendants in an antitrust case are entitled to reimbursement of more than $367,000 in eDiscovery costs.

Plaintiff Responsible for Taxation of eDiscovery Costs.  It appears that making plaintiffs responsible for eDiscovery costs when they lose is becoming a trend. For this case, the Pennsylvania District Court denied the plaintiffs’ motion to eliminate or reduce many of the costs at issue related to electronic discovery but did disallow or reduce some costs, including those incurred for the convenience of counsel.

Another Losing Plaintiff Taxed for eDiscovery Costs.  As noted previously, prevailing defendants are becoming increasingly successful in obtaining awards against plaintiffs for reimbursement of eDiscovery costs. In this case, a California District Court granted the defendants summary judgment on non-infringement and dismissed their counterclaims. The judgment included eDiscovery costs as valid taxed costs against the plaintiff, based on Rule 54(d) which creates a presumption in favor of awarding costs to the prevailing party.

Award for Database Costs Reversed Due to Cost Sharing Agreement.  In this case, Ricoh looked to have the district court’s award of costs to Synopsys reversed for the parties’ use of Stratify for the production of email. While the appellate court decided that the district court properly decided that costs related to the database could be recovered pursuant to 28 U.S.C. § 1920(4), it nonetheless reversed the lower court’s award due to the parties' agreement to split the costs.

FORM OF PRODUCTION

There were several cases related to the form and format of produced ESI, with a number of key issues being debated in the courtroom.  Here are eight cases where production format decisions were made.

Responses to FOIA Requests Must Be Searchable.  Judge Shira A. Scheindlin ruled that federal agencies must turn over documents that include "metadata", which allows them to be searched and indexed.  Indicating that "common sense dictates" that the handling of FOIA requests should be informed by "the spirit if not the letter" of the Federal Rules of Civil Procedure, Judge Scheindlin indicated the government offered "a lame excuse" for delivering non-searchable documents.

Never Mind! Judge Scheindlin Withdraws FOIA Requests Opinion.  Four months later, Judge Scheindlin withdrew that opinion.

Facebook Did Not Deduce That They Must Produce.  In this case, United States Magistrate Judge Howard Lloyd of the Northern District of California compelled Facebook to produce ESI that was previously produced in a converted, non-searchable format and further ordered Facebook not to use a third-party vendor's online production software to merely “provide access” to it. The court’s order granting the plaintiff’s Motion To Compel Production addressed the importance of ESI Protocols, the requirement to produce ESI in native formats, and production of documents versus providing access to them.

Downloading Confidential Information Leads to Motion to Compel Production.  The North Dakota District Court has recently decided in favor of a motion to compel production of electronic evidence, requiring imaging of computer hard drives, in a case involving the possible electronic theft of trade secrets.

Are Attachments Part of the Email Or Are They Separate?  A Special Master recently investigated the legal standard concerning whether or not attachments must be produced with the emails to which they were attached in discovery proceedings, and determined that there is no certain answer to be found in case law precedent.

Court Says Lack of eDiscovery Rules for Criminal Cases is a Crime.  A New York district court recently ordered the United States Government to reproduce thousands of pages of electronic discovery materials in a criminal case involving the distribution of cocaine. In this case, the Government produced thousands of pages of electronic documents and a number of audio recordings, none of which were text searchable. The court ultimately decided that the onus of producing searchable materials for eDiscovery fell on the Government itself.

Produced ESI Doesn’t Need to be Categorized, Even When Voluminous.  In this case, the defendants sought to compel re-production by the Government of ESI in categorized batches relating to transactions with certain characteristics. Judge Victor Marrero of the Southern District of New York denied the defendants’ motion.

New York Supreme Court Requires Production of Software to Review Files.  In this case, the petitioner requested records from the Department of Taxation and Finance in New York that were responsive to petitioner's request under Freedom of Information Law (FOIL) for records related to sales tax audit. The petitioner then moved to compel production of the Department’s Audit Framework Extension software program in order to install it on his computer and view the electronic files. The petitioner's motion was denied, not once, but twice. Would a final appeal result in compelling production of the software?

INTERNATIONAL EDISCOVERY

As companies “go global” and more data is stored “in the cloud”, discoverability of ESI within international jurisdictions is becoming increasingly in dispute.  Here are two cases with global ramifications:

Bankruptcy Court Denies Foreign Access to Debtor's Emails.  A Southern District of New York United States Bankruptcy Court denied access to a debtor's emails on July 22, in a foreign request involving international eDiscovery. In this case, the U.S. Bankruptcy Court determined that to permit a relief request from a German insolvency administrator would directly contravene the "fundamental principles" of U.S. public policy by undermining the right to privacy in electronic communications and the right of parties involved in any court order to receive notice of such proceedings and of their involvement.

U.S. Court Rules on ECPA Protection of Emails in the Cloud.  An October 3 decision by the Ninth Circuit Court of Appeals offers new clarity in defining and protecting the eDiscovery rights of non-U.S. nationals using U.S. services online, by ruling that emails stored on servers located within the U.S. are protected by national laws on ESI.

Tune in tomorrow for more key cases of 2011!

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.

eDiscovery Case Law: 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 Patel v. Havana Bar, Restaurant & Catering, No. 10-1383, (E.D. Pa. Dec. 5, 2011), a case of dueling claims of spoliation, the court imposed sanctions against both parties for failing uphold their duty to preserve relevant evidence.

The plaintiff was attending an engagement party when he fell from a second floor loft overlooking the dance floor. Whether the plaintiff fell due to intoxication or whether he intentionally jumped was a matter in dispute. During discovery, the parties filed cross-motions seeking sanctions for discovery violations.

The bar's video system recorded the evening's events, but the bar owner failed to preserve the recording. He attempted to copy the video before the system's automatic overwriting erased it, but he did not have the right equipment to make a copy. In addition, the system allowed him to print images from the recording, but he failed to take advantage of this feature. Thus, the court found that spoliation had occurred: even though the defendant took some steps to preserve evidence, his steps were inadequate. Thus, the court imposed an adverse inference sanction against the bar.

Additionally, the defendant sought spoliation sanctions against the plaintiff for failing to preserve statements of witnesses who attended the party. In 2008, the plaintiff's sister-in-law sent a message over Facebook asking attendees to write statements supporting the plaintiff's case that he was not intoxicated and that he was merely jovial. However, in 2010, the sister-in-law again asked attendees for statements via Facebook, this time requesting confirmation that the bar recklessly served the plaintiff alcohol and explaining that she would not use statements that the plaintiff jumped from the second floor. The plaintiff did not share any of the statements with the defendant until defense counsel discovered their existence during a deposition. Then, the plaintiff's counsel turned the 2010 statements over one by one as depositions occurred. The plaintiff never produced any of the 2008 statements, and family members offered conflicting stories as to their whereabouts.

The court imposed a number of sanctions on the plaintiff, finding that his behavior "ran completely afoul of the goals of discovery." The sanctions included an adverse inference sanction for failing to provide the statements. The court also ordered the plaintiff to pay for the costs of redeposing several witnesses. Finally, the court awarded the defendants fees and costs "for the time and effort they expended in attempting to obtain discovery that they were entitled to receive."

So, what do you think?  Did they both deserve what they got?  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 Daily will take a break for the New Years holiday and will return next Tuesday, January 3.  Happy New Year from all of us at Cloudnine Discovery and eDiscovery Daily!

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: Lilly Fails to Meet its eDiscovery Burden, Sanctions Ordered

In Nacco Materials Handling Group, Inc. v. Lilly Co., No. 11-2415 AV, (W.D. Tenn. Nov. 16, 2011), the court required the defendant to bear the costs of discovery where its preservation and collection efforts were “woefully inadequate.” Parties must cooperate and voluntarily preserve, search for, and collect ESI to avoid the imposition of sanctions.

In this case, Nacco, a manufacturer and seller of lift trucks and aftermarket parts, accused Lilly, a former Nacco dealer, of illegally accessing its proprietary, password-secured website on over 40,000 occasions. Nacco asserted a host of claims, including violations of the Computer Fraud and Abuse Act, computer trespass, misappropriation of trade secrets, tortious interference with contract and business relations, and tortious interference with prospective economic advantage.

Nacco filed a motion seeking expedited discovery so that its forensic expert could search Lilly’s computers and determine which computers accessed Nacco’s proprietary information. The expert turned up evidence of inappropriate access on 17 of the 35 computers he examined.

As discovery continued, Nacco also requested the deposition of a 30(b)(6) witness. However, the witness Lilly offered was unprepared to answer questions on the topics outlined in the deposition notice. Based on the witness’s statements in the deposition and evidence found during the forensic examination, Nacco filed a motion to prevent the further spoliation of evidence and sought sanctions.

The court decided that Lilly’s attempts to preserve evidence were “woefully inadequate.” The company “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.” Specifically, U.S. Magistrate Judge Diane Vescovo found that the company “failed to timely issue an effective written litigation hold, to take appropriate steps to preserve any existing electronic records, to suspend or alter automatic delete features and routine overwriting features, and to timely and effectively collect ESI.”

The court explained that Lilly sent the litigation hold to seven of its 160 employees without adequate instructions—and the seven did not include the “key players” to the litigation. The company made no further efforts to prevent the deletion of e-mail, data, or backup tapes. Finally, the company apparently “left collection efforts to its employees to search their own computers with no supervision or oversight from management. Lilly did not follow up with its employees to determine what efforts were taken to preserve and collect relevant evidence, and Lilly failed to document any of its search and collection efforts.” Therefore, the court found that Lilly breached its duty to preserve relevant evidence.

After finding the company negligent, the court imposed sanctions against Lilly that included the expense of additional discovery, including the cost of a second 30(b)(6) deposition, the forensic examinations and imaging already complete, the costs of additional analysis of computers of the nine employees who accessed Nacco’s website, and the costs of imaging the computers in its service department. In addition, the court ordered Lilly to pay monetary sanctions equal to plaintiff’s reasonable costs, including attorney’s fees, in bringing the motion.

Finally, the court ordered Lilly to provide an affidavit describing its preservation and collection efforts and certifying that it had suspended its automatic delete functions and preserved backup tapes.

So, what do you think?  Were the sanctions justified? If so, did the court go far enough?  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).

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 Trends: John Simek
 

This is the third of our Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is John Simek. John is the Vice President of Sensei Enterprises, a computer forensics firm in Fairfax, Va, where he has worked since 1997. He is an EnCase Certified Examiner and is a nationally known testifying expert in computer forensic issues. Together with his wife, Sharon Nelson, John has become a frequent speaker on eDiscovery topics and digital forensic issues. We have also interviewed Sharon, who serves as Sensei’s President, for this series, and her interview will appear this coming Wednesday.

You have been a forensic examiner for a long time. How has the business changed over that time? How much does the rate of change in computer technology make your job difficult? Has social media and mobile technology changed the nature of your work and the evidence in play?

Certainly the technology changes present a challenge for any forensic examiner. We are constantly investing in training and tools to deal with the changing landscape. Social media investigations and mobile devices are explosive forms of evidence for many of our cases. The constant changes in smartphones means we must have dozens of tools to extract data from iPads, Androids, BlackBerrys, iPhones, tablets and other mobile devices. Access to social media data varies as well. Some is readily available in the public areas, some may reside on the actual computer used to access the social media sites and some data may be held by the providers themselves, where the user has no clue it is being collected.

There have been several cases of law firms and EDD providers suing each other of late. Why is there this seeming rise in conflict and how does it affect relationships in the industry?

I’ve only seen two such cases and they get ugly really quick. I think the primary reason is lack of transparency and adequate communication. The client should always know what the anticipated costs and effort will be. Should scope change then a new estimate needs to be communicated. I think all too often the EDD providers launch out of the gate and the costs spiral out of control. Obviously, if you are one of those providers that ended up in court over fees or even inadequate or improper processing of ESI, your reputation will be forever spoiled.

There are a lot of certifications a forensic examiner can obtain. What is the value of certification? How should buyers of EDD services evaluate their forensic examiners?

Certifications are a good starting point, although I think they have lost their value over the last several years. Perhaps the tests are getting easier, but I’m seeing folks with forensic certifications that shouldn’t be trusted with a mouse in their hand. Don’t just look to forensic certifications either. Other technology (network, operating system, database, etc.) certifications are also valuable. Check CVs. Do they speak, write and have previous experiences testifying? One of the best methods of evaluation is referrals. Did they do a quality job? Were they on time? Did the costs fall within budget?

You’ve done a lot of work in family law cases. In cases where emotions are running high, how do you counsel clients? Is there a way to talk to people about proportionality when they are angry?

You’ve hit the nail on the head. There is very little logic in family law cases, especially when emotions are running high. I’ve lost count of the number of times we’ve told clients NOT to spend their money on continuing or even starting a forensic analysis. Some listen and some don’t. The exception is where there are issues pertaining to the welfare of any children. We had one case where dad was into BDSM and exhibiting similar behavior towards the children. Mom had no job and was extremely brutalized from the abuse over the years. We completed that case pro bono as it was the right thing to do. Dad lost custody and ordered supervised visitation only.

There has been a lot of hype about EDD services for small firms. In your experience, is this becoming a reality? Can small and solo firms compete with large firms for more EDD cases?

Electronic evidence plays a part in more and more cases. There is a crying need for better tools and methods to review ESI in the smaller cases. Thankfully, some vendors are listening. Products like Digital Warroom and Nextpoint’s products are very affordable for the smaller cases and don’t require a large investment by the solo or small firm attorney. These are hosted solutions, which means you are using the cloud. Large firms are also using hosted solutions, but may use other vendor products depending on the type of data (e.g. foreign language) and/or volume.

You testify in a lot of cases as an expert witness. What are the reasons your services might be needed in this area? What are common reasons that forensic evidence is being challenged, and how can legal teams avoid being challenged?

The good news is that less than 10% of our cases end up going to trial. As we say in the forensic world, “The truth is the truth.” Once we have had a chance to analyze the evidence and report the findings, there are rarely any challenges. That’s what a forensic exam is all about- being repeatable. The opposing party’s examiner better find the same results. The challenge may come from the interpretation of the results. This is where experience and knowledge of the expert comes into play. Many of the forensic examiners today have never used a computer without a graphical interface. Remember the Casey Anthony case? I cringed when I heard the prosecution testimony about the activity surrounding the Internet searches. It failed the smell test in my mind, which ended up being true since the expert later admitted there was a problem with the software that was used.

Would you recommend a similar career path to young technologists? What do you like about being a forensic examiner?

Some universities are now offering degrees in Digital Forensics or some similar name. I’m not sure I would go the route of computer forensics as a baseline. I’m seeing more activity in what I would call digital investigations. This includes network forensics and dealing with cases such as data breaches. We are doing more and more of these types of exams. It’s sort of like following the data trail. Probably the single best thing about being a forensic examiner is getting to the truth. Since we also do criminal defense work, there are many times that we’ve had to call the attorney and tell them that their client needs a new story.

Thanks, John, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Case Law: Produced ESI Doesn’t Need to be Categorized, Even When Voluminous

In United States v. Rubin/Chambers, Dunhill Ins. Servs., No. 09 Cr. 1058, (S.D.N.Y. Nov. 4, 2011), defendants’ motion to have the Government in a criminal antitrust conspiracy case organize and format its discovery production to indicate which of four categories of collusion each document or electronic file related to was denied. The Government was “under no general obligation to identify or sort Brady material within even an extremely voluminous disclosure.”

Defendants were charged with conspiring to rig bids and fix prices on municipal derivatives. They asked for an order requiring the Government “to produce discrete collections of documents and electronic files that relate to four categories of transactions, and that such production be organized and formatted so as to indicate to which of those four categories each document or electronic file relates.” Defendants contended that the categories correlated to different aspects of the Government’s theory of collusion and that the categorization of overt acts that the Government was expected to prove at trial “would be useful to impeach the testimony of cooperating witnesses who will testify as to Defendants’ intent in entering into the Featured Transactions.”

The court denied defendants’ motion. Brady materials already produced to defendants in mostly searchable format did not have to be produced again “in categorized batches” relating “to transactions with certain characteristics.” The court stated: “Absent prosecutorial misconduct — bad faith or deliberate efforts to knowingly hide Brady material — the Government’s use of ‘open file’ disclosures, even when the material disclosed is voluminous, does not run afoul of Brady.” While the court acknowledged its discretion regarding defendants’ motion, the Government had provided searchable electronic documents, defendants had corporate assistance and could assist in their own defense since they were not being incarcerated before trial, and each defendant was represented by “prominent, sophisticated counsel.” The collapse of the law firm serving as the technical coordinator for the defendants’ discovery review platform “while unfortunate, does not alter the inescapable conclusion here: Defendants are anything but impoverished and certainly not so incapacitated as to warrant shifting such a substantial portion of the burden of preparing their defense to the Government.”

So, what do you think?  Was that an appropriate ruling, given the volume of ESI?  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 Case Law: 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.

In Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011) the court ruled that the plaintiff’s Facebook information was discoverable as being relevant and not privileged and ordered the plaintiff to turn over her Facebook login information to the defendant within 14 days, giving the defendant a 21-day window to inspect the plaintiff’s Facebook profile (after which she was allowed to change her password).

In this case, one of the plaintiffs claimed that a motorcycle accident caused by the defendant left her with chronic physical and mental pain. During a deposition of one of the plaintiffs, the defendant learned that she had a Facebook account and had accessed it as recently as the night before the deposition.  The defendant had reason to believe that the plaintiff had posted pictures of herself on Facebook enjoying life with her family as well as a status update about going to the gym. Accordingly, the defendant filed a Motion to Compel, demanding that the plaintiff provide her Facebook username and password to enable the defendant to demonstrate that the plaintiff’s injuries aren’t as bad as she claimed.

The defendant cited two cases where discovery of social network content was granted: Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010).  The plaintiffs responded with two cases where courts denied discovery of Facebook material: Piccolo v. Paterson, No. 2009-4979 (Pa. C.P. Bucks May 6, 2011) and Kennedy v. Norfolk S. Corp., No. 100201437 (Pa. C.P. Phila. Jan 15, 2011).

The court considered the following factors in ruling for the defendant:

  • Relevancy: Since the plaintiff claimed that “she suffers from, among other things, chronic physical and mental pain” and that the defendant claimed that the plaintiff’s “formerly public Facebook account included status updates about exercising at a gym and photographs depicting her with her family that undermine her claim for damages” the court ruled that the information sought by the defendant is “clearly relevant”.
  • Privilege and Privacy: The court noted that there “is no confidential social networking privilege under existing Pennsylvania law” and that there is “no reasonable expectation of privacy in material posted on Facebook”.
  • Stored Communications Act of 1986 (SCA): While the SCA places limits on the government’s ability to compel Internet Service Providers (ISPs) to disclose information about their users, only one court has addressed whether Facebook is an entity covered by the SCA: Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010).  In that case, it was ruled that the information being sought directly from Facebook (and other social networking sites) was protected under the SCA, but this court ruled that the SCA does not apply in this case because the plaintiff “is not an entity regulated by the SCA.”
  • Breadth of Discovery Request: The court noted that the plaintiff’s contention that the defendant’s motion is “akin to asking her to turn over all of her private photo albums and requesting to view her personal mail” is “mistaken” as content posted on Facebook is not private.  So, such a request would not “cause unreasonable annoyance, embarrassment, oppression, burden or expense” as the cost to investigate the plaintiff’s Facebook information would be borne by the defendant.

As a result, the court ruled in favor of the defendant and ordered the plaintiff to turn over her Facebook login information to the defendant within 14 days.  Hopefully, the plaintiff doesn’t resort to tampering with the content on their Facebook page.

So, what do you think?  Assuming relevance, should all parties be required to produce social media information? Please share any comments you might have or if you’d like to know more about a particular topic.

Happy Thanksgiving from all of us at eDiscovery Daily and CloudNine Discovery!

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 Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

“Spoliation of evidence” refers to the deliberate destruction of evidence prior to a trial.  It is a rare event in civil litgation.  But, spoliation of evidence was found in a case involving a personal injury lawyer in Virginia.  Lawyer Matthew Murray was ordered to pay $522,000 for instructing his client to remove photos from his Facebook age.  His client was ordered to pay $180,000 for obeying his instructions.  A state district judge issued these sanctions in the case of Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011).

Murray was found to have told his client to remove pictures, such as the one of him holding a beer and wearing a t-shirt that said “I ♥ hot moms.”  The client was a recent widower suing about the death of his wife.

In this case, the defendant was able to show via expert testimony that the widower deleted 15 photos from his Facebook account and perhaps a 16th.  The photos were provided to the defendant later, before the trial.  The jury found in favor of Mr. Lester and awarded $10 million.  Subsequent to the trial, the judge ordered that Plaintiff’s counsel provide copies of emails between the lawyer and his client to the court for in camera inspection (i.e., for the judge’s eyes only).  When the district judge ordered production of these emails, he ruled that emails related to Defendant’s request for production were not attorney-client privileged.

This all started when one of the defense lawyers apparently “hacked” into Mr. Lester’s Facebook page via a mutual friend and observed the photos showing Mr. Lester as apparently non too distraught over his wife’s death.

The court found that the plaintiff, Isaiah Lester, lied about his depression and treatment.  The court found that Murray told Lester via email “to clean up” his Facebook page and told the client that “blow-ups” of pictures like the “I [heart] hot moms” photo would cause problems at trial.  Lester deactivated his Facebook page.  A few days later, in responding to discovery requests, the plaintiff said he did not have a Facebook account.  The defendants complained – at this point they knew Lester had or should have a Facebook account.  Murray then asked Lester to reactivate his account.  The plaintiff’s lawyer also provided hard copies of the 16 photos to the defense.

At his subsequent deposition, Mr. Lester lied about what he had done and denied he had deactivated his Facebook account.

Defendants then issued a subpoena duces tecum for emails between Lester and his lawyer for the time period when the request for production was issued.  Plaintiff resisted.  The defense then filed a motion to compel.  The court required a privilege log of the disputed emails.  The judge found the initial privilege log deficient.  When Murray finally produced the incriminating email, he claimed its prior omission was error and blamed the omission on a paralegal, ultimately leading to the sanctions.

So, what do you think?  Were those sanctions fair or were they excessive? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: San Antonio Employment Law Blog.

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 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.