Header graphic for print

All About eDiscovery

Case Law & Best Practices

Lightning Strikes and Power Surges Insufficient to Insulate Defendant from Discovery Sanctions

Posted in Adverse Interference, ESI, Preservation, Sanctions, Spoliation

In a trademark infringement case pending in the Northern District of California (InternMatch v. Nxtbigthing, 2016 WL 491483 [N.D. Cal. Feb. 8, 2016]), plaintiff requested copies of any documents relating to the defendants’ defense that it had continually and pervasively used the trademark at issue.   The defendants were not able to produce many responsive documents and advised plaintiff that a lightning strike in 2011 and a subsequent power surge in April 2015, destroyed responsive documents, including relevant corporate records.  Defendants further noted that after the power surge, they discarded certain laptops and hard drives that were damaged by the event.

Believing defendants intentionally destroyed electronic versions of responsive documents, plaintiff sought sanctions against defendants.  The Court, following the newly amended FRCP 37(e), found defendants violated their duty to preserve relevant evidence.  The Court specifically noted that defendants failed to run diagnostics on the destroyed computer following the power surge to assess whether the files on the laptop’s hard drive could be recovered prior to discarding it.  Defendants failed to take any recovery efforts despite their claim that the only electronic copies of the marketing materials allegedly establishing “previous use” of the trademark existed on that computer. The Court also found the power surge to be an implausible claim. The Court held that “at the very least, [the] defendants consciously disregarded their obligations to preserve relevant evidence,” and granted the plaintiff’s request for an adverse inference instruction sanction.

This case reminds us that under the new Rule 37(e), courts are authorized to use specific measures, including adverse inference sanctions, if relevant information that should have been preserved is lost – irrespective of the mechanism that caused the loss. The decision also serves as a good reminder that electronic information is susceptible to destruction and modifications based upon uncontrollable events — like power surges — and we remain obligated to take prompt preservative/remedial measures upon learning of such events.

Defendants’ Proposal to Redact Non-Relevant Information Recently Upheld under Newly Amended Rule 26

Posted in FRCP

Chief Justice Roberts commented that the newly amended Federal Rule of Civil Procedure, Rule 26 “crystalizes the concept of reasonable limits in discovery through increased reliance on the common-sense concept of proportionality.”  This common sense approach was recently embraced by a Special Master, and then approved by the District Court Judge, in the products liability case In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016).

In that case, the defendants proposed to withhold or redact non-relevant information from their production of documents.  The proposal included redacting non-relevant parent emails from responsive families (i.e., if the email was not relevant but it’s attachments were, defendants proposed to redact the email, but produce the entirety of attachments).  Specifically, defendants proposed to redact information pertaining to seven discrete categories of information in an effort to balance their desire to protect highly confidential trade secrets while complying with their discovery obligations.

The District Court concluded the defendants’ proposal was appropriate and, quoting Chief Justice Robert’s comments about the then proposed amendments, highlighted that “a party is not entitled to receive every piece of relevant information,” and therefore “it is only logical” that “a party is similarly not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.”  This “common Sense” approach is a fair and balanced way to proceed with discovery, especially when responsive information is mixed with non-responsive information.

While not discussed in the In re Takata case, query whether a redaction log – comparable to a privilege log — is advisable when applying responsiveness redactions to one’s production.  Such a log may prevent against gamesmanship and over-designations.  I, myself, have had occasion to apply responsiveness redactions to productions and have made it my practice to create a redaction log, which articulates – in a summary fashion – the reason for the redaction (i.e., redaction of information relevant to a contract other than the one at issue in this litigation).

What is a Data Map, Anyway?

Posted in ESI, Preservation, Preservation Obligation

When dealing with a lawsuit that inevitably will require the production of electronically stored information (“ESI”), one of the first things we (as counsel) have to do is figure out where that ESI resides.   But how, exactly, does one begin to determine where responsive data exists?  Well, consider the client’s data map.

Some of you may be thinking, what the heck is a data map?

A data map is just as it sounds – it is a way to understand the specifics of where responsive electronic information resides within a company/corporation’s infrastructure.  It often does not exist at the inception of a lawsuit, but instead is “drawn” by counsel after engaging in interviews with a client’s information technology (“IT”) represen­tative, the client’s general counsel, and/or  the individuals at the client who are most likely to have information responsive to the lawsuit (i.e., the custodians).  The resulting “map” should list as much information as possible about what electronic information exist (email, Excel documents, accounting reports), on what devices (lap top, shared drive, desktop, the cloud, backup servers), under whose care (custodian vs. IT), and how the data may be accessed.

It is critical to note though, the map that you create today, may not be accurate in a week.  Specifically, if a server fails, or a laptop crashes, for example, then data that existed in location “A” today, may reside at location “B” next week, and therefore, the data map from last week is no longer accurate.  The point being – even if a client hands you a data map at the inception of a litigation – you should confirm it is current and accurately reflects the existing infrastructure.

While this post is not intended to discuss litigation holds, suffice it to say that a data map can help focus a litigation hold (i.e., what media needs to be preserved and for which custodians) because the better you understand where the data resides, the easier it is to identify what needs to be preserved.

Some critical items to think about and discuss when meeting with the client/IT representative and endeavoring to create a data map.

What is the physical infrastructure in place at the client:

  1. Location
  • Where is the client’s datacenter?
  1. Specifics of infrastructure
  • Identify and secure server names, server location, and IP addresses of servers.
  • Make sure you understand the operating system in use, and whether the servers are backed up.
  1. Email specifics –
  • What application is used (i.e., Microsoft Exchange, Googlemail)?
  • Where is the email hosted (i.e., internally or elsewhere, are they stored locally or at server level)?
  • Are Emails backed-up? If so, with what frequency?
  • Where do those backups reside?
  • Is there an auto-delete functionality in place?
  • Is there a mailbox size limitation?
  1. Custodians –
  • Who are my custodians?
  • Where do they work?

For each custodian ask:

  • What computer(s) do they use
  • What is the name/IP address/operating system in use
  • What is the custodian’s email address
  • Custodian documents – can they be stored locally? Or must they be saved on a server share?  Here it is critical that you understand whether the custodian can write/store files to his/her local drive (as compared to whether the Company discourages it)?

Interviews with custodians are critically important.  Aim to understand the practice of each individual – how and where they store their emails/e-docs.

  1. Other Devices –
  • Does the custodian have their own mobile device/tablet?
  • Is it company issued?
  • Is it used at all for work purposes?

You must likewise explore the specifics of each device upon which work related tasks were performed.

The more detailed of a map you can create, the more informed you will be when trying to scope your project and assess the various electronic information that you may need to collect.

The Christopher Carmicle Case – The Hits Keep Coming!

Posted in Sanctions, Spoliation

In Brown Jordan Int’l v. Carmicle, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016) – a case previously written about on February 11, 2016 the Court was required to determine whether certain actions taken by Christopher Carmicle (“Carmicle”), a high-ranking employee running two subsidiaries of an international furniture company,  warranted termination of his employment for cause.  In particular, the Court was required to determine whether Carmicle’s repeated access of other employees’ email accounts (including the CEO, CFO and General Counsel of the parent company) amounted to gross negligence or willful misconduct.  In connection with determining that larger issue, the Court had to resolve multiple factual and legal issues including whether Carmicle violated federal law (see BLOG Is Your Spouse’s Phone Subject to Production Under Federal Rule 45? ).  While familiarity with my prior posts is assumed, the consolidated cases were tried in a bench trial from October 27, 2015 through October 30, 2015, continued from November 2, 2015 through November 6, 2015 and then again from November 9, 2015 to November 10, 2015.  The Court ultimately concluded that Carmicle’s employment was properly terminated for cause.  Today’s blog, however, deals with the discreet issue that arose when Carmicle sought the return of his personal laptop from the company plaintiffs, who refused to release the laptop unless Carmicle could prove he paid for it with his own money.  Presumably frustrated and seeking to similarly frustrate his former employer, Carmicle remotely locked a company laptop he had in his possession, and refused to provide a password to unlock it throughout the case proceedings, rendering the laptop and its contents inaccessible.  The defendant also claimed to have lost a personal tablet and other devices containing screenshots of emails and other data.  The plaintiffs filed a motion for sanctions under the newly amended Rule 37(e) for spoliation of evidence.

It should come as no surprise that the Court determined that litigation was reasonably anticipated when the defendant destroyed or withheld data, and that he knew or should have known of his duty to preserve. Therefore, the court held that the defendant had acted with intent to deprive plaintiffs of information, and accordingly ordered an adverse inference instruction for the jury.

Even when emotions run high, it is critical that we – as counsel – remind our clients of their obligation to timely and fully comply with their discovery obligations.  The failure to timely preserve and produce all relevant data carries significant ramifications under the amended federal rules.

Documents Identified by Agreed Upon Search Terms Do Not Necessarily Require Production of Those Documents

Posted in ESI, Search Terms

In Gardner v. Continental Cas. Co., (2016 WL 155002 [D. Conn. Jan. 13, 2016]), the District Court was called upon to decide two different issues raised by Plaintiffs in a motion to compel.  The case itself concerned the long term care insurance coverage for five Connecticut residents for stays at Connecticut Managed Residential Care (“MRC”) facilities.  As is relevant here, after some negotiation, counsel agreed to a list of search terms to use to search the emails of twenty-three custodians.   The result was the return of approximately 38,000 documents.  Defendants reviewed the documents for relevance and privilege and produced 2,214 pages of documents – many of which were copies of the complaint and other filings in the lawsuit.  Plaintiffs sought to compel the production of the balance of the 38,000 documents, all of which were found using the agreed-upon search terms, and argued the smaller production was the result of defendant “cherry-pick[ing]” documents.  Plaintiff also agreed it should not be forced to accept the “just trust us” approach defendant endorsed. Further, the plaintiffs argued that the purpose of the agreed-upon search terms was “to avoid prolonged and detailed debate over what ESI documents [were] ‘responsive’ . . .” The plaintiffs supported their position regarding the scant production by pointing out that the defendant’s third-party claims adjustor submitted a “far more comprehensive and informative” production, while the defendant argued that it had already provided “extensive discovery” and that it had spent “significant resources” reviewing the documents from the agreed-upon search terms.

This discovery issue arises with much consistency in cases with extensive electronically stored information (“ESI”).  Overwhelmingly courts conclude that the position taken by plaintiffs is “simply untenable” – the defendant is not obligated to turn over all 38,000 documents, especially where issues of privilege abound.  The court did, however, recognize plaintiffs’ “legitimate concern” regarding the limited production, and ordered opposing counsel to confer and discuss approaches for addressing the potential need to turn over results of the search hits including—“sampling and iterative refinement.”

This decision raises an interesting issue.  It would seem obvious that only relevant non-privileged documents would be produced irrespective of how many documents (i.e., false responsive or privileged) “hit” upon a search term.  However, to avoid motions to compel and protracted discovery disputes, this case reminds us all to spell out precisely what we are agreeing to do when we enter into ESI protocols.

Why Every Litigator Must Understand the New Federal Rules

Posted in Amendments to FRCP, Rule 45

It can hardly be denied that no lawyer wants to apply the wrong legal standard in papers or be criticized by the Judge before whom they are appearing.  Regrettably, just that occurred in Henry v. Morgan’s Hotel Group, (15-cv-1789), and Magistrate Judge Cott (SDNY) was quick to point out defense counsel’s errors.  In doing so, the Judge reminded all practitioners that it is critical to remain abreast of the changes in the law – most relevant here – the amendments to the Federal Rules of Civil Procedure, which took effect December 1, 2015 (“Amendments”).

In one of the first decisions in which the Southern District applied the Amendments and explained the import of them, Magistrate Judge Cott criticized a defense firm for issuing third-party subpoenas to plaintiff’s former employers.  Specifically, Judge Cott indicated that attorneys for Morgan’s Hotel Group ran afoul of civil procedure rules—including the Amendments which were passed, in part, to prevent “fishing expeditions”—when they tried to secure background information on plaintiff Philip Henry.

Background

Plaintiff, Henry, a gay, African American male, worked for two years as a server at the former Isola restaurant in the Mondrian Soho Hotel.  Henry brought a lawsuit against the Morgan Hotel Group for discrimination wherein he alleged that his supervisor Akihide Suzuki subjected him to racial and homophobic abuse.  He further alleged that when he complained to more senior supervisors, Suzuki retaliated and gave Henry fewer, less desirable shifts, more banal tasks and subjected Henry to needless disciplinary measures.  Henry alleged that the restaurant director, Greg Cau, joined in the harassment and disciplined Henry for various unfounded grievances.

On December 24, 2015, defense counsel served subpoenas on third parties—each prior employers of Henry’s—wherein counsel sought all documents and communications relating to Plaintiff “including but not limited to personnel files, disciplinary files or any other employment documents or records.”

Henry’s attorneys moved to quash the subpoenas, and Magistrate Judge Cott granted that motion.  In doing so, Judge Cott stated a number of bases for doing so.  First, Judge Cott found that filing subpoenas on third parties and plaintiff’s counsel at the same time violated Federal Rule of Civil Procedure 45, which requires that plaintiff’s counsel be notified of defendant’s intention to subpoena non-parties.  Judge Cote observed, “[t]he subpoenas were served on Christmas Eve (an arguably sharp tactic to begin with) on both third-party employers and Henry’s counsel” and noted that, “[s]ome courts have quashed subpoenas due to untimely notice” only.

Judge Cott further stated that other courts require in addition to untimely notice, a showing of prejudice to the Plaintiff before they will quash the subpoena.  Here, Judge Cott found, Henry made a showing of prejudice.  Specifically, the subpoenas were sent to restaurant groups that own more than a dozen establishments in New York City and, if Henry were to apply for employment with any of these restaurants/hotels, his chances of securing employment could be compromised.  Judge Cott stated specifically, “the court would hardly be surprised that, if defendant (or any other establishment) knew that an applicant for employment had bought a lawsuit against another restaurant for discrimination, it might take that into account in the hiring process.”

Nonetheless, the Court found the subpoenas could be quashed on other grounds. “The scope of the subpoenas themselves is problematic, to say the least,” he said. “Blanket requests of this kind are plainly overbroad and problematic.”  Moreover, Defendant “mistakenly invoked the ‘reasonably calculated to lead to the discovery of admissible evidence’ standard of the prior version of Rule 26(b)(1)….That rule was amended last year and this language, long relied on by counsel to seek wide-ranging discovery, has now been eliminated.”  Ouch.  Motion to quash granted and a written decision noting defense counsel’s error.

Judge Cott went on to note that the new rule requires proportionality such that the information sought must be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to the relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”  The purpose of the Amendments was to discourage overuse of broad reaching discovery by considering “proportionality” before ordering production of the requested material and here Defendant fails the analysis.

The Court noted that “[t]he issue presented here is whether defendant’s actions directed toward Henry were based on valid considerations or violated the discrimination laws.”  Judge Cote noted that “Henry’s prior employment has little if any bearing on this issue.”

So what’s the moral of the story?  If nothing else, the Henry case is important reminder that we must understand and invoke the new federal rules and stay abreast of the case law interpreting those rules.

A Few ESI Musts For 2016

Posted in ESI, Technology Assisted Review

Today’s post draws upon countless other recent articles and blogs and their respective predictions regarding, what’s in store for 2016 when it comes to e-discovery.  I have tried to synthesize below, the steps that I believe every litigator should embrace for the coming year.

First, learn the new rules of civil procedure. The amended Federal Rules of Civil Procedure took effect in December 2015.  As you all likely know by now, the new rules emphasize cooperation and proportionality.  Specifically, the amendments require lawyers to better understand best practices for complying with and participating in their discovery obligations especially in the “E” world (i.e., electronic).  With the change in Rules, it is inevitable that the federal decisions will begin to discuss and interpret these rules.  We, as lawyers, need to follow and digest those decisions and interpretations and make certain that our client’s do what is necessary to comply with the new Rules and the decisional law on point.

Next, economize without jeopardizing defensibility. Any attorney responsible for a case that involves a large document collection/review/production component has inevitably heard complaints from clients about the cost of that component of litigation.  There are, however, ways to defensibly contain costs (i.e., limiting custodians, utilizing key word searches, restricting time frames, utilizing contract attorneys for review, deduplication, deNYSTing, early cases assessment, data analytics…).  However, if 2015 taught us anything it was that federal judges in our Circuit are embracing technology assisted review.  Look no further than Magistrate Judge Peck’s decision in Rio Tinto PLC v. Vale S.A., (See Magistrate Judge Peck’s Recent Decision on the Use of Predictive Coding and the Cooperative Obligations Involved ) where he endorses this advancement as one of most efficient ways to efficiently review a large volume of data. Judge Peck commented “it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it”…and “predictive coding [is] widely accepted for limiting e-discovery to relevant documents and effecting discovery of ESI without an undue burden.”  Consider technology assisted review if you need to stay within your litigation budget on high volume cases.

Third, Stay Abreast of Advances in Technology. As mentioned in past blog posts (See blog Will New York Follow California’s Lead) a number of state ethics opinions and rules are now emphasizing the need for lawyers to possess competence in technology.  Specifically, lawyers must demonstrate knowledge of techniques for handling electronically stored information in discovery. At least one federal court has cited California’s formal ethics opinion, suggesting attorneys “should be able to perform” various eDiscovery tasks, including preserving, identifying, collecting, and producing data (either on their own or with guidance of e-Discovery specialists or counsel).  I suspect other courts are not far behind.  So…no time like the present to get comfortable with e-discovery demands and technology.

Fourth, Understand How Your Corporate  Client’s Employees Create and Store Data. I need look no further than my eleven year old to realize I don’t understand the latest devices and apps, or the vast amount of data he can create on those devices and apps.  Now, imagine that volume potential on the corporate level! We can no longer take comfort that we collected data from servers, laptops, and mobile devices.  Instead, your collection plan must identify any potentially relevant data that exists in atypical formats including, for example, social media (snapchap, facebook, Instagram, etc.), text messages, the cloud, ….Then, our plan must assess how to preserve this information and whether collection is necessary.

Fifth – and Definitely Not Finally — Everyone Should Think About Cyber-Security. With the Cybersecurity Information Sharing Act of 2015 signed into law in December, cybersecurity is no longer just an issue for one’s information technology team.  We, as attorneys, must prioritize efforts to make sure our corporate clients are preparing for a potential data breach and informing their employees of steps to take that may safeguard their data.

In Parallel Case to Lola v. Skadden Arps, 13-cv-05008, Quinn Emanuel Wins OT Challenge

Posted in Contract Attorneys, Document Review, FLSA, Overtime

Last year we wrote about the Lola v. Skadden Arp case wherein contract attorney, David Lola, brought suit under the Fair Labor Standards Act (“FLSA”) for overtime pay.  (See When Do Contract Attorneys “Practice Law”? and What Exactly is The Practice of Law). In or around December 16, 2015, the Lola case was settled and, on December 22, Judge Richard Sullivan (SDNY) approved the settlement, which called for $75,000 to paid to named plaintiff David Lola and two other contract attorneys placed at Skadden Arp.

The settlement, however, left unresolved the issue shared between the Lola case and the Henig v. Quinn Emanuel Urquhard & Sullivan (13-cv-1432) case, which had been pending before the Honorable Ronnie Abrams.  Namely, whether some legal work – like document review – is so routine that it cannot be considered the practice of law.

The Henig suit stems from two months of work Mr. Henig did in 2012 as a temporary attorney.  William Henig – who received $35/ hour for the work performed – sought overtime pay from Quinn Emanuel under the FLSA saying he reviewed more than 13,000 documents to assess their relevance to a litigation and whether the documents were considered privileged or confidential.  Under the FLSA and New York Labor Law, law firms are exempt from paying overtime to licensed lawyers engaged in legal work who put in more than 40 hours a week.  Henig, however, argued – much like Lola before him – that he was not engaged in the practice of law as he was not required to exercise any legal judgement.  Rather, he was engaged only in the mundane task of “tagging” documents during a large scale document review.  More specifically, Henig claimed that after a power point orientation all he had to do was assess whether a document was responsive or not responsive based solely upon a chart provided to him by Quinn Emanuel.  Southern District Judge Abrams, however, granted summary judgment to Quinn Emanuel commenting that, “Not all [large scale document review projects are] law at its grandest but all of it is the practice of law.  Mr. Henig was engaged in that practice.”  She noted that part of Henig’s role in reviewing documents was to assess not only responsiveness to a given discovery demand, but to flag for further review a document that had any possibility of being privileged.  Judge Abrams also noted that the orientation presentation instructed the contract attorneys to look for interesting and hot documents that are “important” to the case and “documents that would be helpful in depositions or briefs should be flagged.”  “The presentation indeed uses language that anticipates the need for legal judgment, particularly with regard to privilege, which the presentation acknowledges is ‘tricky’ and ‘includes a lot of gray areas’.”

Notwithstanding persuasive positions during oral argument, Abrams dismissed the 2013 lawsuit seeking overtime pay from Quinn Emanuel, finding that the work of contract attorney William Henig, while perhaps a bit dull, qualifies as the practice of law.  In fact, the Judge stated, “plaintiff’s tagging history and his other descriptions of his role on….the project…confirm that his job involved more than the largely mindless task that would result from following the [Quinn Emanuel] instructions to the letter…In particular, plaintiff’s use of the deliberative process privilege and ‘key’ tags on certain documents…make clear that plaintiff’s work…involved the type of professional judgment necessary to be engaged in the practice of the law.”

Both lawsuits were closely followed by the industry and students alike.  Indeed, firms were interested in the outcomes as contract attorneys are increasingly used as a low-cost way to tackle massive document reviews obligations thanks to the ever growing volume of electronically stored information. Moreover, young graduates were eager to see the outcome given that a  ruling that document review is not the practice of law could result in law firms hiring anyone to do the work, making competition for these positions even more acute.

Southern District Reiterates the Critical Importance of Issuing a Litigation Hold and Grants Sanctions Against City and NYPD

Posted in Litigation Hold, Sanctions, Spoliation

As most of those reading this are aware, companies/entities/agencies doing business in the US generally are not required to indefinitely preserve business records and information.  However, those companies/entities/agencies must preserve relevant information when a lawsuit or an investigation is reasonably anticipated. This duty stems from both the common law duty to prevent spoliation of evidence and certain state and federal statutes and regulations. *

A “litigation hold” or “hold notice” is an instruction within a business organization directing employees to preserve (i.e., refrain from destroying or modifying) certain paper and electronic information that may be relevant to the pending or anticipated lawsuit or investigation.

The importance of complying with one’s obligation to issue and abide by a litigation hold was recently the subject of a decision in the Southern District of New York.  In early December, Judge Sweet denied New York City’s request to unseal 850,000 criminal court records for putative class members in a civil rights class action against the City of New York (“City”).  The complaint, originally filed in 2010, alleged that the City and the NYPD had engaged in a pattern of stopping, seizing, and issuing summonses to individuals without probable cause – thus violating the class members’ civil rights by requiring officers to meet quotas of summonses issued irrespective of whether a crime had occurred or probable cause existed.  The records were sealed pursuant to a privilege codified in New York’s Penal Law.  The City argued that the records should be unsealed so that defendants could identify potential class members and then seek discovery from them in order to challenge class membership.  Judge Sweet found that the privacy interests for the absent class members far outweighed the City’s request on the eve of the close of discovery.

Barely a month later, in early January, Judge Sweet granted in part a motion for sanctions against the City and the NYPD for spoliation of evidence.  Calling upon Second Circuit case law, Judge Sweet noted that spoliation is defined as “the destruction or significant alternation of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”  Judge Sweet found that the City failed to implement timely a litigation hold (FN) which, when combined with the NYPD’s existing document destruction policies, resulted in the destruction of critical information and evidence.  Specifically, the lack of preservation resulted in few, if any documents being produced for key custodians.

Notably, Judge Sweet did not find that the City and the NYPD had acted in bad faith, but instead concluded that both the City and NYPD acted with gross negligence in failing to implement a litigation hold:

The failure to circulate a litigation hold, and to ensure that it was properly implemented, was particularly damaging in the context of the NYPD’s standing document retention policies, which ensured that inaction on the part of the City would result in the destruction of evidence . . . . The NYPD cannot credibly argue that, despite setting guidelines for document destruction and providing an industrial shredding truck for that purpose, it did not know or intend that documents would be destroyed.

Judge Sweet noted that he is vested with “broad discretion” in crafting a proper sanction for spoliation but should focus on three priorities when fashioning a sanction: (1) deterring parties from engaging in spoliation; (2) placing the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restoring the prejudiced party to the same position s/he would have been absent the wrongful destruction of evidence.  Against this backdrop, Judge Sweet granted a permissive inference in response to his findings, and indicated that he will instruct the jury that the absence of documentary and email evidence does not establish in this case the absence of a summons quota policy at the NYPD.

*   Although see blog posts of Aaron Zerykier on January 6, 2016 and January 21, 2016 discussing relevant standard in NY and federal courts triggering preservation.

** The City did not issue any litigation hold until August 2013 – more than three years after the filing of the Complaint in this case.  Moreover, the evidence indicated that the litigation hold was not effectively communicated and that none of the officers named in the City’s initial disclosure ever acknowledged receiving the hold.

 Stinson v. City of New York et al – 10-Civ.-04228-Spoliation

Is Your Spouse’s Phone Subject to Production Under Federal Rule 45?

Posted in Compel, Spoliation

The short answer is – maybe; if there is any possibility that the information contained on the phone may be relevant to the claim or defense of any party in the lawsuit.

In this action (Brown Jordan Int’l Inc. v. Carmicle, 2015 WL 6142885 (S.D. Fla. Oct. 19, 2015)), plaintiffs sued defendant in the United States District Court for Southern District of Florida asserting a number of claims including: (a) a violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”); (b) a violation of the Stored Communications Act, 18 U.S.C. §2701; (c) a breach of fiduciary duty and the duty of loyalty; (d) conversion; (e) unjust enrichment; and (f) breach of contract and declaratory judgment (28 U.S.C. § 2201).    Defendant, Chris Carmicle, filed suit against BJI Holdings, LLC and other entities and individuals in the Circuit Court of Kentucky wherein he asserted multiple claims including: (i) wrongful termination; (ii) wrongful discharge; (iii) breach of contract; (iv) a violation of the CFAA; (v) conversion; and (vi) defamation.

Carmicle’s suit was eventually removed and consolidated in the Southern District of Florida with the original suit.

During the course of coordinated discovery, the parties entered into a Jointly Stipulated Order Setting Computer Forensic Investigation Protocol (“Ordered Protocol”). Pursuant the Ordered Protocol, Carmicle submitted his electronic devices and storage sites for forensic examination.  Based upon review of those devices and sites, BJI Holdings believed that the iPhone owned by Rashna Carmicle (“Rashna”)—Carmicle’s spouse—may contain information relating to the claims in the action.  Consequently, on September 5, 2015, BJI Holdings served a subpoena on Rashna requesting the production of her iPhone by September 11, 2015.  Rashna resisted and refused to voluntarily produce her iPhone.  BJI Holdings accordingly filed a motion to compel.

The Court, relying upon the Federal Rules of Civil Procedure generally, stated that the scope of discovery empowered parties to obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.  Fed. R. Civ. P. 26(b)(1). The Court further noted that:

a request for discovery should be considered to be seeking relevant information if there is any possibility that the information sought may be relevant to the claim or defense of any party in the action.

Against this backdrop, the Court found that the information sought from Rashna’s iPhone appeared to be relevant to the claims asserted in the action and good cause exists.   Specifically, Rashna is married to Christopher Carmicle, who is a party in both related actions pending in the U.S. District Court for the Southern District of Florida and during the course of discovery, BJI Holdings received a forensic report indicating that Rashna’s iPhone may contain discoverable information.  In the forensic examination report, the examiner outlines data destruction that took place on one of Chris’s Macbook Air laptops and notes:

Review of additional data, including Internet history, cookie files, p-lists and log files do not document any Brown Jordan International data, covered by the scope of this investigation, having been transferred through this laptop. The exception is an Apple iTunes backup file of Rashna’s iPhone, which contains some of the original Brown Jordan International screenshots. This data was not deleted, but apparently unintentionally captured on this computer as the iPhone had been synched via iTunes in December of 2013.

Because BJI Holdings presented sufficient evidence to convince the Court that Rashna’s iPhone may contain information relevant to the claims asserted in the litigation and demonstrated good cause to seek the forensic examination of the iPhone, the burden shifted to Rashna to establish that the requested material either does not fall within the scope of relevance or is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of broad disclosure.

Having failed to carry her burden, the Court granted BJI Holdings’ motion to compel and ordered Rashna to produce her phone for forensic examination.  The Court did, however, permit Rashna to review the material on the iPhone for privileged material prior to forensic examination.