plaintiff

Failure to Produce Originals Could be Spoliation in Third Circuit : Electronic Discovery Law

January 26, 2012 By Global EDD Group Leave a Comment

Bull v. United Parcel Service, Inc., — F.3d —, 2012 WL 10932 (3d Cir. Jan. 4, 2012)

In this case, the appellate court concluded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,” but found that in the present case, the District Court abused its discretion in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

The plaintiff in this case failed to produce two original notes from her doctor (but did produce copies during discovery). During trial, when plaintiff’s counsel attempted to introduce a copy of one of the notes, defendant objected on the basis of best evidence. In the sidebar that followed and in subsequent questioning of the plaintiff by the court, it became clear that there was some confusion between plaintiff and counsel as to the existence of the originals. Ultimately, plaintiff indicated that the original note “should be” at her home and the there was no reason she did not search for it previously. This contradicted her attorney’s representation that the plaintiff had been asked for the originals and reported that she could not find them. Accordingly, the District Court declared a mistrial and invited the defendant to file a motion for sanctions. Plaintiff produced the original doctor’s notes to the court five days later. Thereafter, upon consideration of defendant’s motion for sanctions, the District Court invoked its inherent authority and ordered the case dismissed with prejudice. Plaintiff appealed.

via Failure to Produce Originals Could be Spoliation in Third Circuit : Electronic Discovery Law.

Filed Under: From The News Tagged With: Circuit, discovery, district court, doctor, Electronic, electronic discovery, Electronic Discovery Law, Inc, plaintiff, The plaintiff, united parcel service

Plaintiff “Entitled” to Search Non-Party’s Personal Hard Drive Pursuant to Modified Subpoena : Electronic Discovery Law

January 8, 2012 By Global EDD Group Leave a Comment

Wood v. Town of Warsaw, N.C., No. 7:10-CV-00219-D, 2011 WL 6748797 (E.D.N.C. Dec. 22, 2011)

Defendant moved to modify a subpoena which sought access to a non-party’s personal hard drive. Upon plaintiff’s clarification that he would bear the costs of the search and cooperate to negotiate search terms and that he sought only the non-privileged ESI identified by search terms and not all contents of the drive, the court ordered that the non-party’s counsel could review the results before production and allowed the search to go forward.

In this employment discrimination case, defendant sought to modify a subpoena seeking inspection of a non-party’s personal hard drive and specifically objected that the subpoena was overly broad, unduly burdensome, not calculated to lead to the discovery of admissible evidence, and sought private, irrelevant information. The non-party was the former town manager and allegedly involved in plaintiff’s termination—the underlying issue in this case.

via Plaintiff “Entitled” to Search Non-Party’s Personal Hard Drive Pursuant to Modified Subpoena : Electronic Discovery Law.

Filed Under: From The News Tagged With: drive, Electronic, Electronic Discovery Law, Entitled, plaintiff, Pursuant, search, search terms, Subpoena

Court Grants Cross Motions for Spoliation Sanctions, Imposes Adverse Inference Against Both Parties : Electronic Discovery Law

December 23, 2011 By Global EDD Group Leave a Comment

Patel v. Havana Bar, Restaurant & Catering, No. 10-1383, 2011 WL 6029983 (E.D. Pa. Dec. 5, 2011)

In this opinion addressing the parties’ cross motions for sanctions, the court ordered an adverse inference for defendants’ failure to preserve relevant video surveillance footage and an adverse inference for plaintiff’s failure to preserve relevant witness statements. For plaintiff’s other discovery violations, including delayed and piecemeal production of witness statements and failure to timely produce a full copy of the relevant police report, as well as for the spoliation of witness statements, the court ordered re-deposition of several witnesses at plaintiff’s expense. The court also awarded defendants’ attorneys fees and costs “for the time and effort they expended in attempting to obtain discovery that they were entitled to receive.”

Plaintiff was injured when he “fell” from a second story balcony/loft at defendants’ bar and restaurant. Whether plaintiff fell or jumped was apparently in dispute. There was also a question as to whether plaintiff was intoxicated at the time of his “fall.”

Defendants recorded video surveillance near the time of plaintiff’s fall which was viewed by the restaurant owner on the night of the accident. He claimed the video did not reveal how the fall occurred. At deposition, the owner explained that he had attempted to copy the video but was unable, despite a call to the system’s provider. He further stated that although the system could print still images, he did not print any. Thus, the video was automatically recorded over and no footage was preserved. The court found that spoliation had occurred. Accordingly, following its identification of the relevant considerations and after noting that “even ‘negligent destruction of relevant evidence can be sufficient to give rise to the spoliation inference,” the court ordered an adverse inference instruction.

via Court Grants Cross Motions for Spoliation Sanctions, Imposes Adverse Inference Against Both Parties : Electronic Discovery Law.

Filed Under: From The News Tagged With: Adverse Inference, Court Grants Cross Motions, Cross, discovery, Imposes, plaintiff, Sanctions, video surveillance

Sanctions Ordered for Failure to Adequately “Preserve, Search for, and Collect Potentially Relevant Information” : Electronic Discovery Law

December 9, 2011 By Global EDD Group Leave a Comment

Naaco Materials Handling Group, Inc. v. Lilly Co., No. 11-2415 AV, 2011 WL 5986649 (W.D. Tenn. Nov. 16, 2011)

In this case, the court found that defendant “failed to take reasonable steps to preserve, search for, and collect potentially relevant information . . . after its duty to preserve evidence was triggered by being served with the complaint” which may have resulted in the destruction of relevant evidence. Further, defendant failed to present an adequately prepared and knowledgeable 30(b)(6) deponent. Accordingly, sanctions were imposed, including, among other things, additional discovery, additional forensic imaging at defendant’s expense, and monetary sanctions.

Plaintiff accused defendant of illegally accessing its proprietary website on over 40,000 occasions. Early in the litigation process, the court granted plaintiff’s motion for expedited discovery which resulted in an order allowing plaintiff’s expert to conduct a forensic examination of defendant’s computers to determine which, if any, were used to access plaintiff’s proprietary information and to make a copy of any hard drive on which such access was detected. Evidence of access was found on 17 of the 35 computers subject to examination. As litigation progressed, and in particular following the deposition of defendant’s 30(b)(6) deponent, plaintiff became concerned that relevant information had been lost and moved to prevent further spoliation and for defendant to bear many discovery-related costs.

The court’s opinion identified several discovery violations, including defendant’s failure to adequately and timely disseminate a legal hold notice; defendant’s failure to “to prevent emails from being deleted, to prevent data from being overwritten, or to identify and preserve backup tapes which might contain the only electronic evidence of access to [plaintiff’s] secure dealer website;” and defendant’s failure to “collect evidence from the key players or to search key players’ computers to see if ESI existed or had been deleted.” Further, defendant “left collection efforts to its employees to search their own computers without supervision or oversight from management” and took no effort to follow up with its employees or to document any of its search and collection efforts. Defendant also failed to provide an adequately prepared 30(b)(6) deponent. Accordingly, the court determined that defendant was “at a minimum, negligent in discharging its discovery obligations.” The court noted, however, that plaintiff did not produce proof that relevant evidence was in fact destroyed and that the extent of prejudice was therefore in question; more substantial sanctions were therefore not warranted. Nonetheless, the court found that lesser sanctions were appropriate.

via Sanctions Ordered for Failure to Adequately “Preserve, Search for, and Collect Potentially Relevant Information” : Electronic Discovery Law.

Filed Under: From The News Tagged With: Court, defendant, Electronic Discovery Law Naaco Materials Handling Group, evidence, Inc, Lilly Co., monetary sanctions, plaintiff, Preserve, relevant evidence, search

Obtaining Disclosure of ESI From Non-Parties | NY Law Journal

November 30, 2011 By Global EDD Group Leave a Comment

It must be hard to be a computer network professional. You’re responsible to maintain security, you have little or no control over what people send and receive from the computers you maintain, and you may be the only person with the technical knowledge and access to identify the source and availability of electronically stored information. I imagine these folks hate subpoenas, especially if they have nothing to do with their employer’s business.

In Tener v. Cremer,[FOOTNOTE 1] the plaintiff sought to compel a non-party, New York University, to respond to a subpoena that might enable the plaintiff to identify the source of a posting on “Vitals.com,” an internet opinion website that advertises itself as the place “where doctors are examined.” This appears to be one of many internet sites that solicit opinions that others may use in making consumer decisions, and the plaintiff in Tener was a board certified physician who wanted to sue the author of allegedly defamatory remarks.

The Vitals.com posting was anonymous,[FOOTNOTE 2] but the plaintiff had learned of an Internet Protocol (IP) address[FOOTNOTE 3] associated with the offending message. This IP address did not identify the author’s computer, but did lead to the server for the entire computer network maintained by NYU. Relying on this clue, the plaintiff subpoenaed the university, seeking to identify all persons using the NYU server who had accessed the internet on the date of the offensive posting, and to identify which of those computers had connected to the Vitals.com site.

It apparently was not easy for the university to comply with the plaintiff’s requests. Although only NYU personnel could obtain access to the system, the “network address translation portal” used by NYU essentially acted as a switchboard, and through this “portal,” many thousands of persons had access to outside websites. When NYU did not produce information satisfactory to the plaintiff, she moved to hold the university in contempt of court.

The university responded with an affidavit by its chief information security officer, who noted that the date of the allegedly offending comment was nearly a full year prior to the service of the subpoena, and that computers used to visit outside websites are identified in the NYU system only by a ” … text file that is automatically written over every 30 days.”

via Obtaining Disclosure of ESI From Non-Parties.

Filed Under: From The News Tagged With: com, computer, computer network, information, new york university, NYU, Obtaining, plaintiff

Client & Counsel Sanctioned for Spoliation where Plaintiff was Instructed to “Clean Up” His Facebook Page : Electronic Discovery Law

November 18, 2011 By Global EDD Group Leave a Comment

Lester v. Allied Concrete Co., Nos. CL.08-150, CL09-223 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011)

In this case, significant monetary sanctions were ordered against the plaintiff and his counsel for egregious discovery violations, including intentional deletion of pictures on Plaintiff’s Facebook page per the instructions of Counsel and subsequent efforts to cover those instructions up, among others.

In this wrongful death case, Defendants sought production related to the contents of Plaintiff’s Facebook page, which were presumably relevant to the question of damages suffered by Plaintiff as the result of the tragic death of his wife. Attached to the request was a picture of the plaintiff “clutching a beer can, wearing a T-shirt emblazoned with ’I ♥ hot moms’ and in the company of other young adults.” Plaintiff’s counsel (with the assistance of his paralegal) determined that the photo likely came from Facebook. Accordingly, Counsel accessed Plaintiff’s Facebook account and thereafter directed his paralegal to instruct Plaintiff to “clean it up” because “we don’t want blowups of this stuff at trial.”

Because the request for production specifically asked for the contents of Plaintiff’s account “on the day this request is signed,” Counsel also instructed Plaintiff to deactivate his account. Plaintiff’s response to the request for production, therefore, was that he had no Facebook account on the day the request was signed. The response was also signed by Counsel. Thereafter, upon being advised that he was obligated to produce the Facebook materials, Counsel instructed his client (through his paralegal) to reactivate the account. Plaintiff complied, and following the prior instruction to “clean up” his account, deleted 16 photos before the contents were printed for production by the paralegal (who claimed not to know of the deletions, as did Counsel). Later, testifying under oath, Plaintiff stated that he had never deactivated his account.

via Client & Counsel Sanctioned for Spoliation where Plaintiff was Instructed to “Clean Up” His Facebook Page : Electronic Discovery Law.

Filed Under: From The News Tagged With: Clean, discovery, Electronic, Facebook, paralegal, plaintiff

Court Sanctions Defendants for Elaborate Spoliation, Declines to Sanction Misled Counsel Unaware of “What was Going on Behind the Scenes” : Electronic Discovery Law

October 7, 2011 By Global EDD Group Leave a Comment

United Cent. Bank v. Kanan Fashions, Inc., No. 10 CV 331, 2011 WL 4396912 (N.D. Ill. Mar. 31, 2011); United Cent. Bank v. Kanan Fashions, Inc., No. 10 C 331, 2011 WL 4396856 (N.D. Ill. Sept. 21, 2011)

In this case, the magistrate judge recommended sanctions against defendants for their bad faith spoliation of a relevant server where the evidence strongly suggested that defendants arranged for the sale of the server to company in Dubai, which resulted in the unavailability of its admittedly relevant contents. The magistrate judge declined to sanction defendants’ attorneys, however, where the evidence indicated that they made efforts to ensure preservation but were misled by their clients and unaware “of what was going on behind the scenes.”

Plaintiff alleged that defendants were in default on several loans and sought damages accordingly. In the course of discovery, defense counsel repeatedly informed defendants of their obligation to preserve relevant information. Despite their obligation to preserve and their assurances to counsel that all appropriate efforts were being undertaken, defendants took steps to ensure the unavailability of a relevant server which was maintained in one of defendants’ warehouses. The details of defendants’ efforts are numerous and complex. Summarizing broadly, when defendants experienced significant financial problems and defaulted on both the lease of the at-issue server and the loan related to the warehouse in which it was stored, Defendant Shah (who controlled the four corporate defendants) entered into an agreement for a “friendly foreclosure” on the warehouse and for the foreclosing bank to purchase the server’s lease (which was owned by a different bank and also in default) and to resell the server to Shah. This agreement was reached after plaintiff’s complaint had been filed and after defendants had been informed of their duty to preserve. Despite this, the arrangements for the bank’s purchase of the lease and resale of the server to Shah were not revealed to defense counsel. Rather, defendants’ attorneys were assured that preservation was ongoing and repeated these assurances to the court and to the plaintiff, without correction or clarification from defendants. When counsel eventually learned that the server had been left at the warehouse following defendants’ eviction and was in the possession of the bank, defendants assured counsel that access would not be a problem; such assurances continued for several months.

via Court Sanctions Defendants for Elaborate Spoliation, Declines to Sanction Misled Counsel Unaware of “What was Going on Behind the Scenes” : Electronic Discovery Law.

Filed Under: From The News Tagged With: Bank, court sanctions, discovery law, Elaborate, Electronic, electronic discovery, magistrate judge, plaintiff, relevant server, Scenes

Court Denies Motion to Exclude Inadvertently Produced Email, Rejects Argument that 26(b)(5)(B) Request for the Email’s Return Satisfied FRE 502(b)(3) Obligation : Electronic Discovery Law

September 16, 2011 By Global EDD Group Leave a Comment

Williams v. District of Columbia, No. 06-02076 (CKK), 2011 WL 3659308 (D.D.C. Aug. 17, 2011)

In this case, the court denied the defendant’s motion to exclude an inadvertently produced email where the defendant failed to satisfy the burden of establishing that reasonable steps were taken to prevent disclosure and where the defendant failed to promptly take reasonable steps to rectify the error. In so holding, the court rejected the defendant’s argument that its actions pursuant to Rule 26(b)(5)(B) (i.e. sending a written request for the return of the email) were sufficient to discharge its obligations under FRE 502(b)(3).

In this case arising from claims of retaliation in violation of the District of Columbia Whistleblower Protection Act, the defendant produced a “recommendation to terminate packet” which contained a privileged email. The email was located within the first ten pages of the packet. Five months later, after realizing it’s mistake, the defendant wrote to the plaintiff requesting the return of the email pursuant to Rule 26(b)(5)(B). The plaintiff did not respond and the defendant did not follow up. More than two years later, when the email was identified as an exhibit for the plaintiff, the defendant filed a motion to exclude.

After ordering additional briefing from the parties, including on the issue of whether requesting the return of inadvertently privileged material pursuant to Rule 26(b)(5)(B) was “necessary or sufficient (or neither) for a party to discharge its obligations under Rule 502(b)(3),” the court denied the defendant’s Motion to Exclude. (FRE 502(b)(3) requires a party who has inadvertently produced a privileged document to “promptly” take “reasonable steps to rectify the error, including, if applicable following Federal Rule of Civil Procedure 26(b)(5)(B)” to avoid waiver.)

via Court Denies Motion to Exclude Inadvertently Produced Email, Rejects Argument that 26(b)(5)(B) Request for the Email’s Return Satisfied FRE 502(b)(3) Obligation : Electronic Discovery Law.

Filed Under: From The News Tagged With: Denies, discovery law, electronic discovery, federal rule of civil procedure, federal rule of civil procedure 26, FRE, Inadvertently, motion, plaintiff, whistleblower protection act

Court Orders Defendant to Re-Post Facebook Profile Picture Showing Infringing Trade Dress to Allow Plaintiff an Opportunity to Print Chosen Posts : Electronic Discovery Law

September 1, 2011 By Global EDD Group Leave a Comment

Katiroll Co., Inc. v. Kati Roll & Platters, Inc., No. 10-3620 (GEB), 2011 WL 3583408 (D.N.J. Aug. 3, 2011)

In this trademark infringement case, Plaintiff sought sanctions for defendants’ alleged spoliation of several categories of evidence, including the contents of the individual defendant’s Facebook page. Specifically, plaintiff sought sanctions for the defendant’s failure to preserve his Facebook pages in their “original state” i.e., before they were taken down, and because he changed the Facebook profile picture (which had previously displayed the infringing trade dress at issue) without preserving the prior image. The court held that while the spoliation was unintentional, it was nonetheless “somewhat prejudicial” and ordered the defendant to change the picture back for a brief time, to allow plaintiff to print whatever posts it found relevant.

via Court Orders Defendant to Re-Post Facebook Profile Picture Showing Infringing Trade Dress to Allow Plaintiff an Opportunity to Print Chosen Posts : Electronic Discovery Law.

Filed Under: From The News Tagged With: discovery law, Electronic, electronic discovery, Facebook, kati roll, Picture, plaintiff, profile, trade, trademark infringement case

For Key Employees’ Bad Faith, Intentional Spoliation, Court Imposes Adverse Inference and Monetary Sanctions : Electronic Discovery Law

August 16, 2011 By Global EDD Group Leave a Comment

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09cv58, 2011 WL 2966862 (E.D. Va. July 21, 2011)

The court found that defendant breached its preservation duty when key employees intentionally deleted ESI in bad faith. Acknowledging Kolon’s (insufficient) attempts to place a litigation hold, the court declined to impose default judgment, but ordered sanctions in the form of attorneys’ fees, expenses and costs related to the motion, and an adverse inference instruction. In so doing, the court rejected arguments that plaintiff suffered no prejudice and that because many of the files were recovered, there was no spoliation.

In this case, plaintiff alleged trade secret misappropriation, theft of confidential business information, conspiracy, and other business torts. Defendant received plaintiff’s complaint on February 4, 2009. On February 6th, defendant issued a litigation hold order to certain upper-level employees. On February 10th, a second litigation hold notice, written in English, was distributed to all employees, most of whom did not speak English. A third litigation hold was later issued to the IT department, but had little effect on the outcome of the spoliation motion.

Despite knowledge of the relevant complaint and/or receipt of a litigation hold notice, many of defendant’s key employees deleted relevant information from their computers and email accounts. These deletions were discovered as the result of defendant’s production of several screen shots with handwritten notes that appeared to identify certain files for deletion (e.g., files were marked “Need to Delete,” “Remove All,” “Get Rid Of,” etc.). Suspicion of spoliation was also raised by the “suspiciously low document production totals” for key employees and the deposition testimony of employees “which assertedly showed that Kolon failed to instruct key employees on their preservation duties. . .” The extent of the deletions, however, was uncovered only upon the court’s request for additional discovery into the apparent spoliation. Forgoing the voluminous details of the spoliation, it suffices to say that plaintiff’s expert concluded that defendant’s employees had deleted at least 17,811 files and email items, many of which were highly relevant to the issues of the case.

via For Key Employees’ Bad Faith, Intentional Spoliation, Court Imposes Adverse Inference and Monetary Sanctions : Electronic Discovery Law.

Filed Under: From The News Tagged With: business torts, deposition testimony, du pont de nemours, e i du pont de nemours, hold, Intentional, key, Monetary, monetary sanctions, plaintiff