Total Articles: 37
Recovering E-Discovery Costs: A Potential Trend
As data volumes in discovery increase and the cost of handling electronic evidence rises, there may be a silver lining developing: some courts have awarded costs to prevailing parties related to e-discovery. While opinions are fact-driven and vary by jurisdiction, e-discovery-related costs may be recoverable in some instances if they are found to be necessary and reasonable.
Initial Discovery Protocols for Employment-Discrimination Cases
The exchange of initial disclosures between parties in a lawsuit brought in federal court is not generally considered the most useful endeavor. The parties have to exchange a few pieces of information but, for the most part, expect to get into the substance of the case only after formal discovery has begun in earnest.
11 Employer FAQs (No. 3): When do I have to start saving electronic evidence?
You should start preserving electronic documents (emails, Word and Excel files, Power Point shows, etc.), as well as text messages, voice mail, and any other relevant evidence, as soon as the first of the following occurs
E-discovery at First Byte
Evidence preservation - especially electronic evidence preservation - can be complicated. Indeed, if you think about it, navigating the e-discovery preservation process is much like navigating a relationship. These two seemingly distinct concepts just may have more in common at the fundamental level than you might initially think.
No Friend of Mine: Court Denies Facebook Discovery
We recently posted about Zimmerman v. Weis Markets, a case in which a Pennsylvania court required an employee to turn over his Facebook and MySpace log-in information to the opposing party during discovery. An earlier-filed opinion from a different judge in the same court, though, reached a different conclusion. In Piccolo v. Paterson, Pennsylvania Common Pleas Court Judge Cepparulo denied a motion to compel the plaintiff to accept a Facebook friend request from opposing counsel.
Pa. Court Finds Facebook Posts to be Discoverable Evidence
Social media as evidence in an employment lawsuit is an area of the law that is, to put it mildly, unsettled. A recent decision by a Pennsylvania state court weighs in on the side of parties seeking to discover information contained on social-media sites of other parties. In the case of Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Pa. CP May 19, 2011), the court held that a person who voluntarily posts photos or information to a social-networking profile has no reasonable expectation of privacy in those posts that would prevent their discovery.
Building An Effective Discovery Response Team
These days discovery is haunted by the twin specters of high compliance costs and sanctions for failure to meet compliance obligations. Nowhere are these more evident than in the class or collective action context, since the scope of discovery in such actions is generally substantially broader than in an individual claim.
Five Common Mistakes Lawyers Make in Electronic Discovery
No. 1: Failing to understand what electronically stored information (ESI) your client or the opposing party has.
Top Ten Things to Know About the Federal Rules of Civil Procedure Addressing Electronically Stored Information
The 12/1/06 rule changes make explicit the duties that already existed. Electronically stored information (ESI) has been discoverable for a long time.
Ignorance Is Not Bliss: Knowing When to Issue a Litigation Hold.
Has your company adopted a records management and document retention program that will pass legal muster? Does your company have a protocol in place to ensure that a litigation hold is issued at the right time and to track compliance after the hold is issued? If not, a recent federal court decision serves as a stark reminder that employers must issue litigation holds on a timely basis and track compliance with the directives found in the hold. In Green v. Blitz U.S.A., Inc. (E.D. Tex. 2011), the court sanctioned the defendant in a products liability case when it learned, more than two years after the case had closed, that the defendant declined to issue a litigation hold and destroyed potentially relevant documents.
Work Email and the Attorney-Client Privilege Do Not Mix
An appeals court in California recently decided that emails sent by an employee from her work email address to her attorney are not protected by the attorney-client privilege. In the case of Holmes v. Petrovich Development Company, LLC, an employee sued her employer for wrongful termination. Prior to filing her lawsuit, she had exchanged emails with her attorney, using her office email account. The employer used the emails in its defense, and the employee objected, claiming that they were protected by attorney-client privilege.
Court of Appeal: No Attorney-Client Privilege for Employee's Emails to Lawyer.
Gina Holmes worked for Petrovich Development Co. LLC as assistant to the CEO, Paul Petrovich. She was pregnant early in her employment and got into a discussion with her boss about the length of her leave and their respective feelings about her pregnancy. Although it appeared that they had cleared the air, Holmes simultaneously attempted to hire a lawyer, via email at work. Apparently, Holmes became upset that Petrovich forwarded her emails to others in the organization and quit, claiming constructive discharge, discrimination, harassment, etc.
MENTAL EXAMINATIONS IN EMPLOYMENT LITIGATION
Employers who are sued by current and former employees are often surprised by the degree of emotional distress alleged to have been caused by their supposed “outrageous,” “extreme,” “shocking,” and/or “despicable” conduct. Nevertheless, such allegations are made only partly for the sake of hyperbole in discrimination, harassment, and retaliation cases. Certain damages, such as lost wages, must be supported by concrete evidence. However, damages for emotional distress, available for many employment-based claims, are hard to prove and are largely left to a jury’s discretion. The courts instruct jurors to “use [their] judgment to decide a reasonable amount based on the evidence and [their] common sense.”
Court Urges Practical Approach to Document Preservation Duties
Complying with the duty to preserve potentially relevant information remains one of the most daunting practical challenges in modern litigation. Recently, in an 89-page decision, Chief Magistrate Judge Grimm of the District of Maryland analyzed the nuances of the duty to preserve electronically-stored information and provided guidance on what must be proved in a motion for sanctions for spoliation. He also summarized the multiple and sometimes inconsistent standards between jurisdictions that litigants must navigate. Victor Stanley, Inc. v. Creative Pipe, Inc., Civil No. MJG-06-2662, Dkt. No. 377 (D. Md. Sept. 9, 2010 ) ("Victor Stanley II").1 Victor Stanley II includes language about the importance of considering the proportionality and "reasonableness" of efforts to preserve, injecting some realm of practicality to the overwhelming preservation obligation with which litigants must comply.
Social Media Passwords and Account Content are Discoverable
Social-media usage and privacy interests continue to be a hot litigation topic. An individual’s LinkedIn, Facebook, and MySpace accounts, as well as their text messages and tweets, can be pay dirt for litigators looking to advance or defend a claim. Accordingly, disputes about formal discovery requests for an opponent’s social media profile and similar information are making their way to court. We’ve previously posted about Romano v. Steelcase, in which the court compelled a plaintiff to produce copies of her Facebook and MySpace profiles. In resolving the dispute, the court held that precluding plaintiff’s employer from obtaining the information “would condone [her] attempt to hide relevant information…”
Romano v. Steelcase: Defendant Granted Discovery of Plaintiff’s Facebook Profile
Kathleen Romano sued Steelcase, Inc. for personal injuries she allegedly sustained when she fell from her office chair. Romano alleged that, as a result of the fall, she suffered restricted movement of her neck and back and “pain and progressive deterioration with consequential loss of enjoyment of life.”
Social Networking Discovery: Get Used To It
Russell Burke authored an article entitled "Social Networking Discovery: Get Used To It." It appeared in Strictly Speaking a publication of DRI - The Voice of the Defense Bar.
Social Networking Sites and Discovery -- A Double-Edged Sword.
The advent over the past decade of a plethora of social networking sites such as Facebook, MySpace and Twitter has resulted in a potential treasure-trove of discovery for employers defending lawsuits and charges filed by employees. Communications on these websites can often reveal important personal information about employees – including information that may undermine or entirely refute claims. For example, an employee's posts on a social networking site could reveal that her claims of sexual harassment are actually derived from a consensual relationship with a coworker. The information contained on these websites can also be useful in other contexts. It could reveal that an employee has a substance abuse problem, that the employee is defaming the employer or divulging trade secrets, or even that a potential employee has a history of violent behavior.
BP Oil Spill Demonstrates Why Litigation Hold Instructions Are Invaluable.
Anyone who works with me knows that I place a lot of emphasis on litigation hold letters. In the most general sense, litigation hold instructions are invaluable because they cause everyone involved to pause and think about what they are doing with relevant information. The primary purpose of litigation hold instructions is to make sure that evidence, whether it be a hard-copy document or an e-mail, is preserved. Litigation hold instructions can be used defensively (e.g., sending hold instructions to your team after a you have been altered to a potential for litigation) or offensively (e.g., sending instructions to your opponent to make sure that they dred life preserver rafto not despoil any evidence).
Opening the Door to Facebook: Severe Emotional Distress May be the Key.
A well reasoned opinion by Magistrate Judge Debra McVicker Lynch of the Southern District of Indiana dealing with a request for information from what she dubs Social Networking Sites (SNS) should be a starting point for anyone who is seeking (or opposing) information from an employment law plaintiff's facebook or myspace profile. The 13 page decision in EEOC v. Simply Storage Management that was issued on May 11, 2010 is a textbook example of what a good discovery ruling should be.
Zubulake Revisited - Preservation Obligations and Sanctions Standards Clarified.
In Pension Committee of the University of Montreal Pension Plan et al. v. Banc of America Securities, LLC
et al., No. 05 Civ. 9016, 2010 WL 184312 (S.D.N.Y., Jan. 15, 2010), Judge Shira A. Scheindlin revisits her
highly infl uential and often-cited Zubulake decisions.1 Although the case did not involve “any examples of
litigants purposefully destroying evidence,” the failure to timely institute written litigation holds constituted
gross negligence. That failure, coupled with plaintiffs’ “careless and indifferent” preservation and collections
efforts, warranted the imposition of severe sanctions. The Pension Committee decision reinforces the essential
need for organizations to have a well-planned, robust records management program and corresponding
eDiscovery response plan.
E-Mails, Memos, and Other Smoking Guns.
Hopefully, nothing in this article about the dangers of e-mails, memorandums, etc. will be news to you. You may even say to yourself "Who didn't know that?" Well, apparently some folks "forget" from time to time that information in e-mails, memorandums, and other documents is discoverable in litigation and may be the basis for large amounts of money changing hands. The information in them may or may not convey the author's actual beliefs or motivations – but it may be a jury who decides.
Recognizing the Risks and Avoiding the Pitfalls of eDiscovery (pdf).
As companies increasingly, and sometimes
needlessly, store excessive volumes of
electronically stored information (ESI), preparing
for litigation has become more complex and
particularly diffi cult for the IT personnel charged
with executing legal hold directives. The 2006
amendments to the Federal Rules of Civil
Procedure (the “Amended Federal Rules”) codifi ed
the view that ESI is discoverable and subject to
various retention requirements. The Amended
Federal Rules require that, early in the litigation,
litigants assess their data and confer about issues
relating to the discovery of ESI.1 Because of the
breadth of information stored in corporate
technology environments and because of potential
pitfalls involved in preserving ESI, in-house legal
and technology departments must work together
and communicate well in order to develop policies
that will help them prepare for a Rule 16 “econference,”
as well as admissibility issues that
may arise during the litigation.
IMs As ESI: When To Save Instant Messages And How To Properly Authenticate Retained IMs (pdf).
Reading through the many eDiscovery
vendor whitepapers on the topic, one
would think that instant message (“IM”)
retention and archiving should be the focus
of every good eDiscovery preparedness
initiative. In a thinly veiled effort to boost
demand for their products, these vendors
have made the blanket assertion that all
companies must retain IM for discovery
purposes as a result of the amendments to
the Federal Rules of Civil Procedure (the
“Amended Federal Rules”), which went
into effect on December 1, 2006. According
to these vendors, this is so because IM
falls within the definition of electronically
stored information (“ESI”) as set forth in
the Amended Federal Rules. While organizations
must account for the Amended
Federal Rules in their eDiscovery undertakings,
the impact of IM on information
management policies is debatable.
eDiscovery Update (pdf).
Most Organizations Have Not Taken Appropriate Steps to Manage Risks Posed by E-mails; Employers May Be at Risk for Employees' Internet Usage; Liability for Data Security Breaches Expanding.
Less Paper, More Danger? (pdf).
The U.S. Supreme Court
approved amendments to the Federal
Rules of Civil Procedure pertaining to
discovery of electronically stored
information (ESI) that took effect on
December 1, 2006. The new rules
substantially alter prior practice by
requiring litigants to, among other
things, exchange, during the initial
Rule 26(f) conference, detailed information
about ESI, including how it is
stored, whether it is being preserved
and whether the information is reasonably
accessible.
Electronic Data: New Rules, New Risks.
In recent years, far too many employers who are not sure how to protect their electronic information have allowed departing employees to take their most valuable trade secrets, degrade the value of their electronic data for litigation purposes, or have seen critical electronic evidence completely destroyed, exposing their organizations to serious civil and criminal liability.
How The New Electronic Discovery Rules Affect Your Business.
Recent changes in the Federal Rules of Civil Procedure will have an enormous impact on employment litigation over the next several years. The changes, which went into effect December 1, 2006, are designed to focus more attention on “e-discovery,” the production of electronic documents in court proceedings. These new rules will be a significant challenge for every employer who faces a lawsuit from now on.
Employment Law Update: New Rules on Electronic Discovery Now in Effect (pdf).
Amendments to Rule 26 of the Federal Rules of Civil Procedure pertaining to the exchange of electronic data during course of litigation went into effect on December 1, 2006.
New Rules Tighten Requirements For Electronic Document Discovery (pdf).
Employers must prepare in advance to satisfy duty to preserve documents.
Reminder: Amendments to the Federal Rules of Civil Procedure Governing E-Discovery Take Effect December 1, 2006 - Are You Ready?
In a follow up to our previously issued Legal Alert, the December 1, 2006 effective date of the amendments to the Federal Rules of Civil Procedure relating to e-discovery is upon us. These amendments should provide guidance to employers and their counsel regarding the retention and production of electronic information in litigation. The amendments address five areas: (a) the need to address electronic discovery in the initial meeting of the parties, including preservation of information, the form of production and privilege issues; (b) discovery of electronically stored information that is and is not reasonably accessible; (c) the assertion of privilege after production; (d) the application of Federal Rules of Civil Procedure 33 and 34 to electronically stored information; and (e) a limit on available sanctions under Federal Rule of Civil Procedure 37 for the loss of electronically stored information resulting from routine operation of computer systems.
Amendments to the Federal Rules of Civil Procedure Affect Employers' Obligations Regarding Electronic Discovery.
Amendments to the Federal Rules of Civil Procedure relating to e-discovery take effect December 1, 2006. These amendments should provide guidance to employers and their counsel regarding the retention and production of electronic information in litigation. The amendments address five areas: (a) the need for early attention to electronic discovery issues, including preservation of information, the form of production and privilege issues; (b) discovery of electronically stored information that is not reasonably accessible; (c) the assertion of privilege after production; (d) the application of Federal Rules of Civil Procedure 33 and 34 to electronically stored information; and (e) a limit on available sanctions under Federal Rule of Civil Procedure 37 for the loss of electronically stored information resulting from routine operation of computer systems.
New Rules Tighten Requirements for Electronic Document Discovery (pdf).
Admendments to the FRCP.
Court Dismisses Case for Failure to Preserve Electronic Evidence.
In a case that demonstrates the importance of complying with court orders regarding electronic discovery and the depth of information that can be obtained from computer files, a federal court in Illinois dismissed a former employee’s breach of contract case against his ex-employer because the former employee deleted, altered or modified thousands of files on a laptop computer after receiving notice that the computer’s contents were the subject of litigation.
Top Ten Mistakes Clients Make In Electronic Discovery (pdf).
"Top Ten Mistakes Clients Make In Electronic Discovery" was published on the web site of the Commercial and Business Litigation Committee of the Litigation Section of the American Bar Association.
Five Common Mistakes Lawyers Make In Electronic Discovery (pdf).
"Five Common Mistakes Lawyers Make In Electronic Discovery" was published on the web site of the Commercial and Business Litigation Committee of the Litigation Section of the American Bar Association.
Nuts and Bolts of Creating a Records Retention Schedule (pdf).
There is no cookie-cutter approach to creating an effective document retention program.
