Skyping with The Confrontation Clause

We also understand that in this technological age, “confrontation” at some point may take on a meaning that none of us has yet imagined or realized. Despite advances in communication technology, a defendant’s right to a fair trial with all its attendant Constitutional guarantees is our legal and moral obligation to uphold.

Judge Michael P Barnes, Indiana Court of Appeals

Few cases have the intersection of the Confrontation Clause, witness unavailability, chain of custody, and Skype.

Williams v State is one such unpublished opinion from the Indiana Court of Appeals.

The Defendant was convicted of murdering an elementary schoolteacher and sentenced to 95 years in prison. Williams v. State, 2012 Ind. App. Unpub. LEXIS 755 (Ind. Ct. App. 2012).

The Defendant appealed on multiple grounds, including whether the Skype deposition of a crime lab expert violated the Confrontation Clause and was hearsay. The crime lab witness case involvement included handling a doorknob, a key piece of evidence, with a bloodstain on it.

The State requested conducting the video deposition of the witness, because she was unavailable due to retiring and moving out-of-state to care for her “gravely ill and elderly” mother. Williams, at *5-6.

Over the Defendant’s objections, the Skype deposition was held approximately 2.5 months before trial. The witness was deposed with a Marion County deputy prosecutor, a Cuyahoga County, Ohio, deputy prosecutor, and the lead police detective physically present with her. The Judge presided over the deposition in court, with the Defendant, defense attorney, another deputy prosecutor, and IT personnel. Williams, at *6.

The Sixth Amendment requires that “out-of-court testimonial statements by a witness who does not appear at trial are inadmissible unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination.” Williams, at *9, citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004).

Indiana Evidence Rule 804(b)(1) states a deposition is admissible hearsay if the deponent is unavailable to testify as a witness at trial. Williams, at *9.

Evidence Rule 804(a) defines witness unavailability. A witness is unavailable if the witness:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3) Testifies to a lack of memory of the subject matter of the declarant’s statement; or

(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) Is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means.

The Court “believed” that the witness’ “unavailability” pushed the law to “the very edge of the envelope,” because it was not the witness’ physical or mental infirmity that prevented her from testifying at trial, but her mother’s illness. Williams, at *10-11.  Moreover, the determination the witness was unavailable was two and a half months before trial. Williams, at *11.  Additionally, there was no information if the health condition of the witness’ mother changed in that time. Williams, at *11-12.

Despite the unanswered questions, the Court found that even if the State failed to demonstrate the witness was unavailable, any error was harmless, because the Confrontation Clause “does not require reversal if it can be shown beyond a reasonable doubt that the error did not contribute to the verdict.” Williams, at *12, citing Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010).

The Court explained that the witness’ involvement in the handling the doorknob and bloodstain evidence was “slight” because she “handled the doorknob during the course of the testing process and was involved in the chain of custody of the blood stain swabbed from it, but no more.” Williams, at *13.

Bow Tie Thoughts

Judges and attorneys in their “normal” lives use technology such as Skype to communicate with family members, friends or hold meetings. This everyday use makes adopting remote video deposition technology easier, because attorneys are comfortable using video conferencing technology.

Such an embrace of Skype is a positive thing for cutting costs for travel to remote depositions of secondary witnesses. However, there are always legal issues to consider in using a technology in a way it might not be intended.

While this Court did not outright hold Skype was acceptable for a remote deposition, there are well-established remote deposition companies whose services provide security, reliability and a synced-video transcript. Using such companies could avoid potential notice and procedural requirements in a remote deposition, such as responsibilities of the videographer and oath requirements for swearing in a remote deponent. In short, using one of these companies is a good insurance policy to avoid any procedural challenges to a remote video deposition that otherwise could be overlooked.

Judge Barnes highlighted there could be real Constitutional issues in criminal cases with remote video testimony. I expect whether a remote video deposition being used at trial will be inversely proportional to how important the witness is to the case. If the witness is very important, their reasons for being unavailable must be very compelling for them not to testify in person.

 

Expert Witnesses & Written Reports

Disclosure requirements for expert witnesses and written reports under
Federal Rule of Civil Procedure Rule 26.

No part of this recording should be considered legal advice.

Deposition Preparation Tips

Josh Gilliland on tips for deposition preparation using litigation support technology.

No part of this video should be considered legal advice.

Santa Clara Bar Association Expert Deposition Seminar

Go “On the Record” with the Santa Clara County Bar Association Civil Practice Committee’s new expert deposition seminar on June 22 at 6:00pm. To register, click here.

“On the Record” is a seminar with Judge Gregory Ward (retired), author of California Objections (James Publishing). After the brief introductory material by Judge Ward, 10 expert witnesses will be available with sample expert reports for mock depositions by the attendees. Experienced attorney coaches will assist the attendees in their mock examinations.

Attorney participants will have the opportunity to depose an expert witness from any one of the following areas:

> Electrical Engineering
> Fires & Explosions
> Computer Forensics
> Industrial Hygiene
> e-Discovery Search Term Efficiency
> Mechanical Engineering
> Advanced Materials

Join us for the latest on deposing experts in California. Learn a judge’s perspective on expert depositions and gain hands-on practice with experienced expert witnesses.

Part 1: 

Retired Superior Court Judge Gregory Ward will give a short overview of expert witness requirements, focusing on preparing to take an expert’s deposition.

Part 2: 

Attendees will divide into small groups for a practical exercise with attendees conducting 10-15 minute questioning of experts.

The experts will be from multiple subject areas to represent several practice areas. Each attendee will be given a one-page expert’s “report” to use in the mock deposition.

Facilitating the interactive groups of Part 2 are the following: Kristine Meredith, Nora Rousso, plus other attorneys to be announced.

Pricing:

SCCBA Member: $65.00
Non-Member: $149.00
SCCBA New Admittee (0-3 years in practice): 55.00

If It is Lost, It’s Not in Your Possession, Custody or Control under Rule 26(a)

In a prison medical treatment case, the Plaintiff brought a motion to exclude medical records pursuant to Federal Rule of Civil Procedure Rule 37(c) after the files were not identified in the Defendants’ initial disclosures or produced in discovery.  Nance v. Wayne County, 2009 U.S. Dist. LEXIS 96279 (M.D. Tenn. Sept. 15, 2009).

The only catch: the non-identified files were lost. 

The Plaintiff claimed the Defendants failed to disclosure the Plaintiff’s medical record pursuant to Federal Rule of Civil Procedure Rule 26(a) (or supplement their discovery responses) and erroneously denied a request for admission. Nance, at * 5-6.  The fact the medical records at one time existed was not discovered until the deposition of a treating nurse.  Nance, at *6-7. 

The Plaintiff wanted 1) the Defendants not be allowed to use the medical records; 2) the facts in the medical records be taken as true according to the Plaintiff’s claims 3) jury instructions on the non-disclosure of the medical records and 4) fees and costs for the deposition.  Nance, at *11-12. 

The Plaintiff lost….because the medical file was lost.   

The Court found the Defendants did not violate Federal Rule of Civil Procedure Rule 26(a).  A party’s initial disclosures only need to include documents within its “possession, custody or control.”  Nance, at *13-14.  Since the medical file was lost, the file was not within the Defendants “possession, custody or control.” Nance, at *16.  Additionally, the Defendant was not going to use the medical file to support claims or defenses. Nance, at *16-17.

Bow Tie Lesson

The lesson of this discovery dispute is that you cannot use what is lost, nor can you disclose what does not exist.

The Titan Killer: Mandatory Exclusion under Federal Rule of Civil Procedure Rule 37(c)(1)

Oracle and SAP are at war.  They have exchanged bayonet charges in discovery for two years in a case where Oracle has accused SAP (TomorrowNow) of “systematic and pervasive illegal downloading of Oracle software over approximately six years.”  Oracle United States v. Sap Ag, 2009 U.S. Dist. LEXIS 91432 (N.D. Cal. Sept. 17, 2009).  Production has been over 12 terabytes with 140 custodians and document review for each custodian has cost $100,000.   Oracle, 6-7.

Somewhere in the thirteen discovery conferences, the Court instructed the parties to follow the proportionality requirements of Federal Rule of Civil Procedure Rule 26(b)(2)(c), to beware of the expense of the proposed discovery outweighing its benefit.  Oracle, 7-8.  Needless to say, knowing the damages at issues when they could equal the budget of a large city would be important to know early in discovery. 

The Plaintiff took the position for two years that their lost profits damages were based on “lost support revenue for Oracle software application products from Plaintiffs’ 358 former customers that had received support from Plaintiffs, but switched to receiving support for Oracle products from TomorrowNow.”  Oracle, 8.  

And that is how discovery played out to the tune of millions of dollars for both parties for two years. 

Iceberg, Dead Ahead

The Plaintiffs switched damages arguments during the depositions of their executives in April and May of 2009.  Oracle, 38.  The Plaintiffs at that time claimed the “greater economic harm came from lost licensing revenue and price reductions to customers that never left Oracle for TomorrowNow.”  Oracle, 38.  The Plaintiffs referred to lost customers as “only the tip of the iceberg” to their damages, which were not disclosed for two years to the Defendants and the Court. Oracle, 38-39.

To Kill a Titan: Court Orders and Supplemental Disclosures

The Defendants fought a Hegemonic war to exclude the additional damages evidence for violating a Federal Rule of Civil Procedure Rule 16(f) discovery order and failure to supplement discovery under Federal Rule of Civil Procedure 26(e)(1).  Moreover, a failure under Federal Rule of Civil Procedure Rule 26(e)(1) subjects the offending party to mandatory exclusion of that information under Federal Rule of Civil Procedure Rule 37(c)(1).  Oracle, 12-15.

The Court held the Plaintiffs had a duty to disclose the “tip of the iceberg” damages known to their executives, long before their depositions two years after millions of dollars had been spent on discovery.  Oracle, 48. The Defendants’ economic damages expert witness stated it would take an additional year to analyze the new damages claims and cost $5 million ($4.4 million had already been spent and it was estimated $4 million more through trial).  Oracle, 48-49. There was no excuse for not disclosing basic damage claims in discovery. 

The Court granted the Defendants’ exclusion motion, precluding the Plaintiffs from arguing any additional damage theories other then the original damages theory. Oracle, 58-59.  Don’t feel too bad for the Plaintiff, because this evidence might be over a billion dollars.  Oracle, 59.

Bow Tie Lessons: The Hammer will Fall

The Plaintiffs were precluded from arguing additional damages theories because they did not supplement their initial and court ordered discovery.  Courts are truly laying down the law on Federal Rules of Civil Procedure Rules 26(a) and 26(e)(1) with the hammer of Federal Rule of Civil Procedure Rule 37(c)(1).

The Plumbing of a Motion to Compel

In a product defect case about brass plumbing fittings, the Defendants fought a motion to compel electronically stored information relevant to class certification, because of undue burden and cost.  They lost…in large part. In re Zurn Pex Plumbing Prods. Liab. Litig., 2009 U.S. Dist. LEXIS 47636, 1 (D. Minn. June 5, 2009).

Paper Clogging the Drain

The Court initially required the parties at the beginning of the litigation to only focus on hard copy documents out of the concern the electronically stored information would drive up the cost.  2.  The Court stated:

“ESI may prove to be relevant to the first stage of discovery, we cannot meaningfully make that prediction now, and require the parties to engage in what could be vastly more expensive, and yet utterly futile, discovery.” In re Zurn Pex Plumbing Prods. Liab. Litig., 2.

 

The Court further stated on electronically stored information:

“[S]hould the parties uncover voids in the information disclosed in hard copy form, they are . . . at liberty to press for further discovery including electronically stored information.” In re Zurn Pex Plumbing Prods. Liab. Litig., 2.

The Defendants’ Electronically Stored Information

Deposition testimony revealed the Defendants’ electronically stored information includes employee email folders and files on the network system.  Additionally, the ESI of former employees’ were archived on DVD.  There was also a separate network drive that contained un-segregated folders from over 600 employees.  In re Zurn Pex Plumbing Prods. Liab. Litig., 2-3.

Enter the Litigation Hold and Search Terms

The Defendants produced a list of individuals who were issued a litigation hold. In re Zurn Pex Plumbing Prods. Liab. Litig., 3.

The Plaintiffs in turn requested searches across the different databases with 26 key words.

The Defendants opposed the request as being “not necessary for class certification and that the request was overly broad and would be extremely costly.”  In re Zurn Pex Plumbing Prods. Liab. Litig., 3. 

The Defendants’ Arguments Going Down the Drain

The Defendants argued that 1) the first Court Order did not allow for any ESI productions and 2) producing ESI would be unduly burdensome and costly. 

The first Court order did NOT foreclose electronic discovery.  In re Zurn Pex Plumbing Prods. Liab. Litig., 4.  The Court stated the first Order allowed for electronic discovery if there were “voids in the information disclosed in hard copy form.” Id.  The Court noted email messages showed possible gaps over fittings failures and aggressive water compared to the paper documents.  Id. 

The purpose of civil discovery is to allow parties to “obtain the factual information needed to prepare a case for trial.” In re Zurn Pex Plumbing Prods. Liab. Litig., 5.  Despite the discovery being limited to class action certification, the Court stated there was a presumption in favor of production the Defendants’ electronically stored information.  In re Zurn Pex Plumbing Prods. Liab. Litig., 4-5.

Cost Counts

The Defendants were able to stop a complete rout with their cost arguments. 

The Defendants had approximately 61 gigabytes of data, which would have totaled around 27 million pages if printed.  The Defendants estimated searching all of the databases to cost around $1,150,000 and take seventeen weeks to perform.  That did not include collection and processing. In re Zurn Pex Plumbing Prods. Liab. Litig., 6-7.

The Court Order

The Court did not buy the Defendants’ burdensome arguments, especially considering a lawyer who was not an expert on searches made the claim. In re Zurn Pex Plumbing Prods. Liab. Litig., 6.

The Court did try to limit false hits from the search terms by limiting the number of search terms to 14 specific terms.  The Defendants’s searches were limited to the network drives, custodian emails and the DVDs of the former employees.  In re Zurn Pex Plumbing Prods. Liab. Litig., 6-7. 

Bow Tie Thoughts:

The parties would have been better served addressing electronically stored information at the beginning of the lawsuit, instead of delaying it for over a year.  Both sides would have been in a better position to judge class certification or settlement options if they knew the big picture.  Moreover, the Defendants had over a 600 person company.  Using email would be a fact of life.

The collection, processing, data reduction and review of 61GB would not be cheap, but $1,150,000.00 for the searches alone over 17 weeks sounds inflated. 

The perceived cost might be inflated by thinking of electronically stored information as the same as reviewing 27 million pieces of paper.  ESI can be reduced by targeted collections, pre-discovery tools to reduce the data set that are then fully searchable in a litigation support software.  With paper review, lawyers, contract attorneys and paralegals are digging through boxes of paper only searchable by the human eye. One can see where a seventeen week estimate comes from such a brut force search. 

Processing costs, which include data reduction to cull down electronically stored information, is approximately $600 to $1000 a gigabyte, depending on the vendor’s services.  Attorney review in a litigation support software is reduced by having to review less ESI, such as not reviewing any email newsletters, spam and focusing on specific date ranges.  With that said, estimating the cost to search 61GB that also did NOT include collection and processing to be over a million dollars seems high on the facts presented.

Follow the Court Order: If You are Ordered to Produce Searchable PDF’s, Don’t Produce TIFFs without Searchable Text

Gamesmanship is the harbinger of bad lawyer reputations.  Not obeying Court orders can be the death warrant on how the judge will view you every time you appear in her courtroom.  One can imagine how things will go for a party when this is the opening line of an opinion:

This is the second needless discovery motion in this case – needless because plaintiff’s counsel simply refuses to follow the letter of court orders, and in this case, not even the spirit. Ajaxo Inc. v. Bank of Am. Tech. & Operations, Inc., 2008 U.S. Dist. LEXIS 97602, 1 (E.D. Cal. Dec. 1, 2008).

Ignoring the Form of Production in a Court Order

The Court ordered ESI be produced in a searchable form and Plaintiffs agreed to searchable PDF’s. 

The Plaintiffs instead produced 119 static images (TIFFs) WITHOUT extracted text for searching, any pagination, or a load file for a litigation support review system.  Ajaxo Inc., 3.

The Plaintiff’s expert material was produced at first late in non-searchable format on 5 CD’s. Ajaxo Inc., 3.  A searchable production was made months later after the motion to compel was filed.  Id.

Preparing for an expert deposition with 5 CD’s worth of non-searchable material does not sound like a good time.

The Court found the Defendants were prejudiced because they could not adequately prepare for the expert’s deposition with the large volume of documents. 

Prejudice was encountered with respect to the Hampton CDs in that the Bank could not adequately prepare for Hampton’s deposition given the volume of documents. Ajaxo Inc., 3. 

The Plaintiffs were ordered to produce both productions in a searchable format and instead disregarded the Court Order.  This did not go unnoticed by the Judge.  Ajaxo Inc., 3. 

Things Judge’s Don’t Like: Excuses

The Court was not thrilled with the Plaintiffs claiming the Federal Rules of Civil Procedure do not require ESI productions in searchable format. 

The Court bluntly stated, “[Plaintiffs’] belief that the Federal Rules may not require production in searchable format is not only wrong, but again ignores the terms of the specific order.” Ajaxo Inc., 4.

Federal Rule of Civil Procedure Rule 34 Review

The Court included the following summary on form of production protocols from the Federal Rules of Civil Procedure, the Advisory Committee notes and case law:

Fed. R. Civ. P. 34(b) permits the requesting party to specify the format of electronically produced documents, subject to objection by the producing party with a statement in the Rule 34 response specifying the form in which the documents will be produced. This objection may be sustained or overruled by a court. In the absence of a court order, and if no specific request is made, the producing party may produce the documents in native format, or in a “reasonably usable” form. Ajaxo Inc., 4, citing Rule 34(b)(2)(E).

A responding party may not change the form of production to make what was ordinarily searchable, non-searchable. Rule 34 Advisory Committee Notes 2006 amendment. Courts may order electronic documents to be produced in searchable format. Ajaxo Inc., 4-5, citing, In re Seroquel Product Liability Litigation, 244 F.R.D. 650, 654-55 (M/D. Fla. 2007); Hagenbuch v. 3B6 Sistemi etc., 2006 U.S. Dist. LEXIS 10838, 2006 WL 665005 (N.D. Ill. 2006)

Enter the Sanctions Motion

The Defendants sought the following sanctions pursuant to the Court’s inherent powers and Federal Rule of Civil Procedure Rule 37(b) (2):

(1) Order it established that Ajaxo and KCM are alter egos;

(2) Order plaintiffs precluded from relying on Hampton’s expert report to support their claims for damages;

(3) Monetary sanctions in the amount of $ 12, 592.50 for fees incurred to date. Ajaxo Inc., 5.

Perspective from the Bench: Not Happy, but Not Fatal to the Plaintiffs’ Case

The Court directly stated:

[Plaintiffs’] counsel may not pick and choose when to comply with a court order depending on counsel’s unilaterally determined excuses or justifications not to comply with the order. The order is either obeyed or appealed. Nor should courts issue orders which they are unwilling to enforce. There is importance per se in not allowing a party to ignore orders – the litigation process would otherwise descend into chaos. Thus, sanctions must be imposed here. Ajaxo Inc., 7.

The Court’s sanctions analysis focused on the Plaintiff counsel’s willful disobedience of the Court order and the prejudice the Defendants incurred. Ajaxo Inc., 7.

The Court was not ready to decimate the Plaintiffs’ case by striking their expert because of the attorney’s conduct.  The Court “barely” believed that Plaintiffs’ counsel acted in ignorance of the law and not in “contumacious disrespect” of it.  Ajaxo Inc., 8. 

The Court ordered the Plaintiffs to re-produce their expert for deposition, because the Defendants did not have adequate time to prepare for the expert’s original deposition.  Ajaxo Inc., 9.

The Court further ordered the costs of the deposition and motion.  Ajaxo Inc., 9-10.

Final Thoughts

Attorneys need to understand the procedures for requesting ESI, form of production requirements and complying with Court orders for electronic discovery to best serve their clients. The sheer volume of electronically stored information requires all lawyers to have a basic understanding of contemporary discovery.

Dirty Law: Cleaning Up a Spoliation Mess

“The duty to preserve relevant evidence is fundamental to federal litigation.”

Janet Bond Arterton, United States District Judge.

Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009) is a polychlorinated biphenyls (“PCBs”) clean up case brought under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and Connecticut law. 

Unfortunately, the clean up efforts included getting ride of evidence that resulted in sanctions for the Plaintiff, Innis Arden Golf Club. 

Pitney Bowes and Pateley Associates 1, LLC, the Defendants in the case, charged that Innis Arden failed to preserve soil samples and related electronically stored information.  The Defendants requested either a dismissal or a proportional alternative sanction for the loss of evidence. 

Things figuratively turned into a toxic mess for the Plaintiffs because their experts failed to have a document retention policy over soil samples from the subject property and related electronically stored information.  Neither the Plaintiffs’ attorneys nor the experts activated a litigation hold on the evidence, which resulted in all the emails and draft reports being deleted after 30 days.  Innis Arden Golf Club, 12-13. 

The following deposition testimony, where the witness admits to litigation being anticipated and the lawyer volunteers they did not inform the Defendants the evidence was going to be destroyed, says it all.

Things You NEVER Want to hear in Deposition Testimony

Q. You knew this case was going to be in litigation, correct?

A. We anticipated that this possibly could go to litigation.

Q. Okay. Did anyone tell you to retain the samples as evidence for this Case?

A. No.

Q. Did you ask?

A. No. . . . But we discussed with counsel notification requirements of all those responsible parties in advance of the remediation to allow them the opportunity to participate or obtain whatever samples they were wanting.

Q. Well, I’m asking you about the evidence you gathered as evidence of alleged contamination. Did you retain that evidence?

A. No. Standard–standard protocol is to dispose of samples once analyzed. . . .

Q. Do you know when the samples in this case were destroyed?

A. No.

Q. Prior to destroying any or all of the samples, did you give notice or did counsel give notice to any of the defendants in this case?

Mr. Flynn: Objection

A. I don’t know.

Mr. Steinberg: Did you?

Mr. Flynn: Did I give notice?

Mr. Steinberg: You or your company.

Mr. Flynn: Notice of what?

Mr. Steinberg: That they were going to destroy the samples. I think it’s pretty obvious what the question is.

Mr. Flynn: Did we give notice? No. Innis Arden Golf Club, 10-12.

The Court cited that the duty to preserve arises when “the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Innis Arden Golf Club, 14, citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998).  Courts must weigh if the destruction was the result of an intentional act and the likely the contents of the evidence to determine the appropriate sanction. Innis Arden Golf Club, 14.

The Court had to answer the following issues:

(1)     Whether the Plaintiff was obligated to preserve the samples and associated data and failed to do so; and

(2)     Whether the failure to preserve evidence warranted imposition of sanctions and to what severity.  Innis Arden Golf Club,15.

Duty to Preserve the Soil Samples & ESI?  You Bet There Was One.

Evidence must be preserved if a party reasonably anticipates litigation.  Once this happens, a party “must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”  Innis Arden Golf Club, 16, citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003).

The Plaintiffs’ documents and their discussion of possible legal action showed the Plaintiff recognized the relevance of the soil samples for possible litigation.  Innis Arden Golf Club, 18.  As such, the duty to preserve began by mid-2005.  Innis Arden Golf Club, 19.

Finding the Appropriate Sanctions for Destroying Evidence

Courts evaluate the following in determining the appropriate sanction for spoliation:

1) The degree of fault of the party who altered or destroyed the evidence;

2) The degree of prejudice suffered by the opposing party; and

3) Whether the appropriate sanction minimizes the prejudice to the opposing party and “serve to deter such conduct by others in the future.” Innis Arden Golf Club, 25 (citations omitted).

 

The Plaintiffs’ email correspondence with their attorney and expert illustrated they wanted to seek a cost-recovery action against the Defendants.  The correspondence showed the Plaintiffs believed the soil samples were important evidence and that the Plaintiffs wanted to avoid being accused of destroying evidence.  Innis Arden Golf Club, 25-26.

The Defendants were prejudiced because they could not review the evidence for dating analysis or type of toxic material.  Innis Arden Golf Club, 26.

The Court found that only sanctioning with an adverse inference instruction was not sufficient for the spoliation the Plaintiffs caused, let alone a strange application in a bench trial.  Innis Arden Golf Club, 28-29.  As such, the Court held the appropriate sanction was the preclusion of evidence based on the soil samples the Plaintiffs took from the subject property and later destroyed. Innis Arden Golf Club, 30.

Producing Social Networking Profiles: What Court has Jurisdiction?

A Facebook user in Massachusetts was facing criminal charges in Massachusetts for criminal harassment and threats to commit a crime from Facebook messages.  Skerry, 2009 U.S. Dist. LEXIS 38804, 1-2 (D. Cal. 2009).  The Petitioner’s defense was that someone had improperly used his account to send the Facebook messages.  Skerry, 4.  The Petitioner sought the emergency deposition of Facebook’s “recorder keeper” because of the concern Facebook periodically purged its information system.  Skerry, 2-4.   

The petitioner’s criminal defense attorney emailed Facebook for ESI pertaining to the petitioner’s profile.  Facebook replied they were creating a preservation order, but they required a formal subpoena to produce any ESI or Documents.  Skerry, 2. 

The Petition filed a pro se motion to compel a deposition of Facebook’s record keeper to perpetuate testimony before any action been filed according to Federal Rule of Civil Procedure 27(a). 

The Petitioner had two major problems: 1) There was no adverse party in the Northern District of California and 2) The Petitioner did not seek to perpetuate testimony “about any matter cognizable in a United States court.”  Skerry, 4

The Petitioner fell victim to the United States District Court for the Northern District of California not having any Federal jurisdiction.  The case was a Massachusetts criminal case with a Massachusetts victim of the alleged crime.  There was no Federal Question for the Federal Court to hear the case, but rather a state criminal action from Massachusetts. Skerry, 4-5.  Since the Court did not have jurisdiction, there was no relief to grant. 

While the Court did deny the motion, the Federal Magistrate Judge did not state any opinion on what a California state court would do with such a request.  Skerry, 5-6. 

The Petitioner’s issue goes back to Marbury v. Madison: A Federal Court needs jurisdiction to hear a case.  When dealing with social networking sites based in one state that provide services to the entire country, the issues of proper venue, choice of law and even state vs Federal court must be considered when seeking legal relief.