2012 Case Law Year-In-Review

2012 eDiscovery Case Law included everything from Tweets to Computer-Assisted Review. However, there was also a very basic theme that is hard to ignore: Cases should be about the merits. And for cases to be decided on the merits, attorneys need to educate themselves on electronic discovery so they know what to argue to a Judge.

Many 2012 cases focused on search terms search term efficiency, demonstrating undue burden, and proportionality, which all highlighted the need for attorneys to understand electronic discovery. Attorneys cannot competently represent their clients without understanding what technology is relevant in a case; the possible sources of electronically stored information; and what technology to use to review electronically stored information.

I discuss many of these cases in my Year in Review, available on the above YouTube link and on my podcast channel.

I wish everyone a very success 2013.

Audio Recording Sanction Blues

Many eDiscovery attorneys associate Chicago with 1) the Blues Brothers and 2) Magistrate Judge Nan Nolan.

Judge Nolan granted in part and denied in part a motion to compel in an employment dispute.

The Judge found the Defendant had a duty to preserve audio recordings of calls that had been destroyed under the company’s retention policy.

The Court further held that the destruction of an audio recording to be grossly negligent or supported a finding of fault.

As such, the Defendants were to be sanctioned with a presumption at the summary judgment stage as to whether plaintiff hung up on a customer, and if the case went to trial, the court should instruct the jury with a “spoliation charge” to be determined by the District Court.   Banks v. Enova Fin., 2012 U.S. Dist. LEXIS 170000, 1-2 (N.D. Ill. Nov. 30, 2012).

The Defendants quickly found an expressway to the District Court, arguing the Magistrate Judge’s order was clearly erroneous. Id.

I Can’t Turn You Loose

The Defendant argued the Magistrate Judge did not have the authority to impose sanctions under a court’s inherent power without bad faith in the Seventh Circuit. There was no citation to any case law for this position. Banks, at *4-5.

While adverse inference instructions do require a showing of bad faith, the Court did not find any bad faith related to the destruction of the tapes. Banks, at *5. However, the District Court noted that the Magistrate Judge did not issue an adverse inference instruction and it was within the Court’s discretion to craft sanctions proportional to a case. Banks, at *6.

The Defendant also challenged the Magistrate Judge’s finding the Defendant had a duty to preserve.  The Court found the Defendants had a duty to preserve the audio recordings based on 1) the termination of the employee based on the phone calls; 2) the Plaintiff’s meeting with his supervisor over his termination; 3) the unemployment claim litigation; and 4) the EEOC charge. Banks, at *6-7.

The Seventh Circuit’s case law states that the duty to preserve arises when a party “’knew, or should have known, that litigation was imminent.” Banks, at *7, citing Viramontes v. United States Bancorp, 2011 U.S. Dist. LEXIS 7850 (N.D. Ill. Jan. 27, 2011).

The District Court noted the issues with terminating an employee alone being a triggering event for a lawsuit:

It would be too onerous a burden to place on all employers a duty to preserve any and all documents that form the basis for the termination of an employee because of the possibility that the terminated employee might sue.

Banks, at *7.

The District Court upheld the Magistrate Judge’s findings that the Defendant had a duty to preserve, because the Defendant could reasonably anticipate litigation when the Plaintiff brought his unemployment claim. Banks, at *7.

The central issue in the dispute was whether the Plaintiff hung up on a customer. The key evidence for his termination were the audio recordings, which still existed when the Defendant appealed the Plaintiff’s initial award of unemployment benefits, however were later destroyed. Banks, at *7-8.

Bow Tie Thoughts

The duty to preserve is a malpractice area for attorneys when transitioning from records information management to a litigation hold. Moreover, eDiscovery is now years beyond email messages and Excel files. Attorneys must discuss with their clients the different electronically stored information in their possession, how they communicate both internally and externally, and what ESI can be related to the subject matter of the lawsuit.

Voicemail/audio recordings is just one example of ESI that can be overlooked. Text messages and social media are already “common” in litigation. It is only a matter of time before augmented reality will start appearing in litigation.

Attorneys must be proactive in conducting client interviews and understanding the types of ESI that can be subject to a lawsuit. To not do so is to risk singing the blues at a sanctions hearing.

Remote Control Duty to Preserve

Can a party issue a litigation hold to one of its contractual agents to preserve information by remote control?

The answer is yes, yes they can.

In Haskins v. First Am. Title Ins. Co., the first issue was whether the Defendant was in “possession, custody, or control” of documents held by its “independent title agents,” and second whether the Defendant had a duty to direct its agents to “preserve” the documents. Haskins v. First Am. Title Ins. Co., 2012 U.S. Dist. LEXIS 149947 (D.N.J. Oct. 18, 2012).

By way of background, the lawsuit involved allegations of overcharging on title insurance. The “independent title agents” issued most of the policies. Haskins, at *1-2.

Under Federal Rule of Civil Procedure Rule 34(a), a requesting party can request information within an opposing party’s “possession, custody, or control.” This does not actually require physical control. Haskins, at *3.

Moreover, the Court explained, “It logically follows that a litigating party has control of documents if a contractual obligation requires a non-party to provide requested documents to the litigating party upon demand.” Haskins, at *4.

Furthermore, a party has control if it has “a right to access the [requested] documents or obtain copies of them.” Haskins, at *4, citing Andrews v. Holloway, 256 F.R.D. 136, 145 n.13 (D.N.J. 2009).

The Court zeroed in on the Defendant’s contracts with its agents that gave the Defendant control of the files, because the Defendant the right to access and use of the files. Haskins, at *6-8.

Litigation Hold Overview

Case law holds that a party has a duty to preserve when a party “knows or reasonably should know” that litigation is foreseeable. Haskins, at *11-12, citing Mosaid Techs. Inc. v. Samsung Elecs. Co., Ltd. 348 F. Supp. 2d 332, 336 (D.N.J. 2004). Once there is a duty to preserve, a party must “put in place a litigation hold to ensure the preservation of relevant documents.” Haskins, at *12, citing Major Tours, Inc. v. Colorel, No. 05-3091(JBS/JS), 2009 U.S. Dist. LEXIS 68128, at *2 (D.N.J. Aug. 4, 2009).

In the age of smartphones and complex networks, the Court stated for a hold to be “suitable” (probably code for reasonable), “a party must identify potentially relevant sources of information, implement procedures to retain that information, and produce information responsive to discovery requests.” Haskins, at *12.

If there is a failure to preserve data and a party seeks spoliation sanctions, a party must demonstrate four factors:

1) The evidence must have been in the party’s control;

2) It must be relevant to claims or defenses in the case;

3) It must have actually been suppressed or withheld by the party; and

4) The duty to preserve evidence must have been reasonably foreseeable to the party.

Haskins, at *12-13, citing Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73-74 (3d Cir. 2012).

The Court held that the Defendant had a duty to preserve, because litigation was active and the material relevant. As such, the Defendant was required to issue a litigation hold of documents within its possession, custody or control. As the Court explained, control did not require physical control, but contractual control was enough to require the Defendants to issue a litigation hold to its independent agents.

Bow Tie Thoughts

The duty to preserve can become tricky with third parties bound by contractual obligations that show control over data. The issue of data stored in “cloud computing” could become extremely complicated, especially if data is hosted in different states or countries from the venue of a lawsuit.

In the end, control of “cloud storage” will be a review of  “Terms of Service” in contractual agreements, most of which are likely clickwrap agreements. These cases will be interesting to watch, especially as more companies host data in a “cloud.”

Always Explain “Why” to the Judge

A Plaintiff brought a motion to compel “access to electronic records,” claiming the Defendants had “withheld electronically stored information” and had not produced a “chronological e-mail history of any kind.” Murray v. Coleman, 2012 U.S. Dist. LEXIS 130219, 1-3 (W.D.N.Y. Sept. 12, 2012).

The Defense attorney claimed that the Defendant had produced “copies (free of charge) of the documents sought,” thus rendering the Plaintiff’s motion “moot.” Murray, at *2.

The Plaintiff countered that, “virtually no electronic records [were] included” in the discovery production.  Id. Moreover, the Plaintiff claimed there was never a “systemic search” of the Defendant’s databases and that he “has not received any chronological electronic records related specifically to a single Defendant and/or electronic communications concerning extensive claims” in the case. Murray, at *2-3.

Magistrate Judge Jonathan W. Feldman stated the Defense attorney’s “terse response” made it difficult to determine whether the Defendants had produced all the responsive email to the Plaintiff’s request for production. Murray, at *3. Moreover, the Court noted that the Defense Declaration had “not provide any details regarding how and where electronically stored information (“ESI”) is held, what efforts were made to preserve relevant ESI, and the method used by defendants to locate, search and produce relevant ESI.” Murray, at *3.

The Court referred to the “inadequacy” of the Defense response to the motion to compel and thus construed the response effectively argued that the electronically stored information was not produced because it was not “reasonably accessible.”  Murray, at *3.

In situations where a party resists the production of ESI, Federal Rule of Civil Procedure Rule 26(b)(2)(B) requires that “the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.”

Case law also requires responding parties to demonstrate how ESI is not reasonably accessible as follows:

[I]dentify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.

Murray, at *3-4, citing Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350, 358-59 (W.D.N.Y. 2011).

The Court ordered the Defendants to comply with Rule 26(b)(2)(B) by filing an affidavit by a person with direct knowledge of the Defendant’s document and email retention system stating:

 (1) The document/email retention policy used by DOCS currently and during the relevant time periods;

(2) The dates of emails “reasonably accessible” for production in this litigation;

(3) The back up or legacy system, if any, used by DOCS to preserve or archive emails that are no longer “reasonably accessible” and whether responsive documents or data may potentially be found on such back up or legacy systems;

(4) Whether accessing archived or back up emails would be unduly burdensome or costly and why; and

(5) The date when a litigation hold or document preservation notice was put in place by DOCS regarding this matter and either a copy of or a description of the preservation or litigation hold utilized by DOCS.

Murray, at *4-5.

Bow Tie Thoughts

I have met Federal and state court judges across the country with one unifying factor on ESI productions: they want to know what was done to find responsive electronically stored information. Gone are the days of lawyers merely telling a judge, “Your Honor, finding email is unduly burdensome and expensive.” Such statements need to be support with specific facts, not empty rhetoric.

Judges are heavily armed with a one word question when an attorney claims ESI is not reasonably accessible: Why?

Magistrate Judge Jonathan W. Feldman outlined excellent points that a party likely would have to answer in many cases. While cases obviously can vary, other possible factors to consider include:

Search methodology required to identify ESI;

Type of electronically stored information;

Technology required to render the ESI into a “reasonably accessible”;

Time required to performance the relevant work;

Cost estimate for process or translate the ESI into a reasonably useable form;

Review cost estimate

This is by no means an all-inclusive list. A person with eDiscovery knowledge can determine what is enough detail to enable a requesting party (and Court) to evaluate the burdens and costs of producing the discovery and the likelihood of finding responsive ESI under the facts of a given case.

“Stay” Really Means Do Not Conduct Discovery

Defendants subject to a discovery stay brought a motion for clarification on discovery between non-parties, starting additional discovery on third parties and issuing litigation litigation-hold subpoenas to third parties. City of Lindsay v. Sociedad Quimica Y Minera De Chile S.A., 2012 U.S. Dist. LEXIS 87672, 1-2 (E.D. Cal. June 22, 2012).

The temporary discovery stay pertained to the admissibility of an expert witness’s testimony. Concurrently before the Ninth Circuit was an identical issue on the admissibility of similar expert witness’s testimony. The Court found a temporary stay promoted judicial economy for the resolution of the issue before the Ninth Circuit. Moreover, the Plaintiff indicated it would “likely” dismiss the case if the witness’s testimony were inadmissible. City of Lindsay, at 2-3.

The Court held the following:

Permitting the parties to proceed with discovery and related activities is contrary to the stay’s purposes of promoting judicial efficiency and economy and of avoiding necessary fees and costs. Accordingly, neither party may proceed with any discovery or litigation proceedings related to discovery until such time as the Court lifts the stay.

City of Lindsay, at 3.

Bow Tie Thoughts

When a Judge says, “stay,” they really mean it to promote judicial economy. They do not want to see the discovery war machine grind litigation budgets into nothing. It is no surprise when a party asks to effectively lift a temporary stay that they would be told no.

However, lawyers who understand the duty to preserve live in fear of data not under their control being lost. They have an ethical duty under their preservation obligations to ensure their client’s data is at least preserved. To be blunt, a discovery stay did not stay the triggering event for when litigation was reasonably anticipated.

A lawyer concerned about third parties with possible discovery might feel very uncomfortable with sending a preservation letter with the Court using language such as  “…neither party may proceed with any discovery or litigation proceedings related to discovery until such time as the Court lifts the stay.”

A lawyer could say with a straight face that sending a litigation hold letter to a third party, or a preservation letter to a third party under their control, is not conducting discovery or issuing a litigation proceeding. Arguably, they are merely alerting the third party there is 1) a lawsuit; 2) a discovery stay in place until a specific date; and 3) identify the relevant data that should be preserved. This conservative attorney has not propounded any discovery, filed a motion in Court, sent out collection experts, performed data analytics, or undertaken any review. In short, no one is spending money.

However, that could quickly change if a third party hires collection professionals and incurs preservation and processing costs. This arguably would violate the intent of the discovery stay to promote judicial economy.

Now, a Court might disagree, but sending a letter alerting a third party alerting them to a lawsuit and their possible preservation obligation should not be considered “conducting discovery.”

No really means no when it comes to a discovery stay. However, sending a preservation letter should not subject a lawyer to legal jeopardy for “violating” a discovery stay.

Believing “Missing” Emails Exist Does Not Make Adverse Inference Sanctions Real

The Plaintiff in an employment discrimination lawsuit brought a motion for adverse inference jury instructions for the alleged destruction or suppression of email over a specific date range.

The Plaintiff did not offer evidence of the email messages existence, only that he believed the email existed.   Omogbehin v. Cino, 2012 U.S. App. LEXIS 12545, at *5 (3d Cir. N.J. June 20, 2012).

The Magistrate Judge denied the Plaintiff’s motion, because the Plaintiff failed to show the messages actually were sent or received. Id.

Two of the Defendants each declared they did not send any of the purported email in the timeframe the Plaintiff claimed the messages were sent. Id. Additionally, two of the Defendants’ IT professionals declared that all of the email from the relevant timeframe had been produced. Omogbehin, at *5-6.

The Plaintiff did not offer any evidence that the alleged emails existed or proof that any intentional or un-intentional spoliation had taken place. Omogbehin, at *6.

The District Court affirmed the Magistrate Judge, finding that the Plaintiff did not establish any facts that the Court could “at least infer that the evidence existed in the first place.” Id.

The Court of Appeals upheld the District Court and Magistrate Judge’s findings.

Case law explains spoliation occurring where:

[1] The evidence was in the party’s control;

[2] The evidence is relevant to the claims or defenses in the case;

[3] There has been actual suppression or withholding of evidence; and,

[4] The duty to preserve the evidence was reasonably foreseeable to the party.

Omogbehin, at *8-9, citing Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012).

After spoliation is established, there is separate analysis for sanctions. Adverse inference sanctions require an appearance that “there has been an actual suppression or withholding of the evidence.” Omogbehin, at *9.

The Court of Appeals held the District Court did not abuse its discretion in finding the Plaintiff failed to prove spoliation occurred. The Court of Appeals highlighted that the Plaintiff “provided no evidence” that the emails ever existed. Id.

As the Court of Appeals explained:

The [Defendants] produced the information and documents that [Plaintiff] requested; that they did not contain what he had hoped or expected is not sufficient to satisfy his burden. He must provide some proof that what he seeks actually existed, but failed to do so. As a result, the District Court did not abuse its discretion in denying [Plaintiff’s] motion. 

Omogbehin, at *9-10.

Bow Tie Thoughts

Cases involving litigation holds and the duty to preserve fundamentally cannot require a party fighting a spoliation motion to prove the non-existence of data. That would require a party to prove a negative, which is inherently a challenge (also known as expensive).  While a producing party can prove how they enacted a litigation hold, which custodians were subject to a hold, how data was collected, and what search terms were used, it is up to the requesting party to prove some facts to show spoliation.

What must a party demonstrate to show spoliation? Showing production gaps, such as a production that has one week with 300 relevant emails, a week with zero, and then another week with 250, might be enough to raise a red flag for a judge. It also might mean the sender was on vacation for a week.

A moving party offering email messages received by a party, but not produced by the producing party, is a more direct way to show possible spoliation. While it simply may show a faulty production, it could also alert a court evidence was not preserved.

There are many ways to show ESI once existed. However, wishing email messages existed does not make them real.

The Fabric of Inadequate Search & Spoliation Allegations

In a case involving claims of copyright infringement of fabric design, the tapestry of the Plaintiff’s discovery production was challenged, including allegations the Plaintiff:

Neglected to search for and produce several categories of documents; and

Deleted relevant emails.

The Defendants sought an order permitting a forensic examination of Plaintiff’s computer files based on the allegations the Plaintiffs deleted relevant emails. Prestige Global Co. v. L.A. Printex Indus., 2012 U.S. Dist. LEXIS 63550, 6-7 (S.D.N.Y. May 3, 2012).

However, the Defendants/Counter Claimant claims did not have the abrasion resistance to withstand judicial review.

Spinning a Judicial Opinion

Judge James Francis IV is no textile apprentice when it comes to discovery disputes. The Court quickly found the Defendants failed to show the Plaintiff did not conduct an adequate search for discovery.  Prestige Global Co., at *7.

The Court explained that the Defendant relied on testimony from one witness who said she was not shown the Defendant’s discovery requests and that she was not asked to search for “many” of the documents identified in the requests. Id.

Judge Francis explained:

[T]here is no requirement that a particular witness, even one designated under Rule 30(b)(6), conduct her own search for documents. Counsel, working with whoever may be the relevant custodians, generally search for documents responsive to a discovery request, and, according to Family Dollar, that is precisely what occurred here. Furthermore, Family Dollar has identified by bates number the documents that it produced in each of the categories about which Printex complains.

Prestige Global Co., at *7-8.

The Court held the Defendant made no showing that the Plaintiffs had engaged in spoliation of evidence and could have warranted a forensic examination of a computer hard drive. Prestige Global Co., at *8-9.

Spoliation, in its simpliest terms, requires that a party violated the duty to preserve. Prestige Global Co., at *8-9. The duty arises when a party “reasonably anticipates litigation.” Prestige Global Co., at *9-10.

The Court held that there was no evidence that the emails subject to the spoliation claims were deleted when the Plaintiff could have reasonably anticipated litigation.  Prestige Global Co., at *10.

As the Court explained:

The garments containing the accused design were produced for the 2008 and 2009 seasons, and any e-mails relating to them were in all likelihood deleted by the end of 2009. Yet, Family Dollar had no preservation obligation until March 2011, when Family Dollar first learned of the claims because Printex filed suit against it in California. Therefore, no forensic examination is warranted.

Prestige Global Co., at *10-11.

Bow Tie Law

There are two interesting issues in this case: searching for responsive discovery and the duty to preserve.

On a fundamental level, the duties of competency and candor to the Court require adequate searches for relevant discovery.  However, in a company of 3,000 individuals, that does not necessarily mean that everyone in the company subject to the duty to preserve must conduct searches for responsive ESI.  Moreover, that could lead to the “fox guarding the henhouse” situation best avoided in eDiscovery.

The concept of “relevant custodians” is one that should not be forgotten by attorneys. Many companies have email and content management systems that records managers and/or ESI consultants can search for responsive ESI. This requires client interviews to determine the relevant custodians and understanding not just who was involved in the facts of the lawsuit, but any terms of art they used in communicating and what technology used in the normal course of business to communicate.

After a content management system is used to enact a litigation hold and export ESI for data reduction, there are several options for attorneys conducting review. Deploying software with data analytics that can learn from a skilled reviewer, enabling the software to “predict” other responsive ESI is one option; Early Case Data Assessment software is another to narrow a dataset to relevant ESI; at a minimum, attorneys should have the data de-duplicated and other data reduction strategies commonly used by litigation support providers before beginning traditional review.

The “triggering event” for the duty to preserve is a fact intensive exercise for many attorneys. They need to understand both their client’s data retention and destruction policies (let alone whether the client was following their policies) and when the duty to preserve began.

ESI that is destroyed as part of regular business operations without a duty to preserve is not subject to spoliation challenges. However, this requires that a party understands which of the 14,000 records retention laws in the US apply to their company; they follow their data retention/destruction policy; and that duty to preserve was triggered after data was destroyed in the regular course of business.

Conjecture is Not Spoliation

Plaintiffs unsuccessful in a trial involving hostile work environment allegations, argued they were entitled to a new trial, because the trial court did not issue a adverse inference instruction for alleged destroyed ESI.  Kullman v. New York, 2012 U.S. Dist. LEXIS 47649, 3-5 (N.D.N.Y Apr. 4, 2012).

The Court agreed with the Defendants that the Plaintiffs failed to show any spoliation of evidence. Kullman, at *2.

The Plaintiffs’ argument failed on relevancy grounds, because the Plaintiffs failed to show any evidence showing the existence, or loss, of any relevant ESI. Kullman, at *4.

The Court further rejected the “conjecture and speculation” of the Plaintiffs that “[i]t would require a leap of the imagination to think that the character of the destroyed electronic evidence would have been anything but that of the electronic evidence that was produced [at trial], which was largely supportive of Plaintiffs’ claims.” Kullman, at *4.

The Court noted that Plaintiffs did not identify any evidence supporting their argument or trial testimony that other similar documents were destroyed. Kullman, at *4-5. As the Court stated, “Such unsupported conjecture and speculation do not justify the issuance of an adverse inference instruction.”  Id.

Chief Judge Gary Sharpe further found that the Plaintiffs failed to show any bad faith by the Defendants in the preservation of evidence. As such, the Court held the Plaintiffs did not “suffer a miscarriage of justice” and denied the motion for a new trial.  Kullman, at *5.

Bow Tie Thoughts

The preservation of electronically stored information is simply more than claiming ESI is lost or destroyed; a party must offer some evidence it once existed.  “Lost” ESI may manifest in a variety of ways.

First, there could be a relevant email received by Plaintiff that the Defendant does not produce; this could show either an issue with preservation or a faulty production.

Second, there could be production gaps, such as dataset having 3,000 emails and attachments one month, zero the next, and 4,000 the following. A large production gap could be a warning light there is missing ESI, either because of inadequate preservation or a production mistake.

Third, there could be an outright admission in testimony, such as backup tapes being overwritten or custodian deleting email because they did not understanding a litigation hold.

Regardless of its form, parties must be able to prove to a judge that a form of spoliation has taken place as part of any spoliation analysis before adverse inference instructions are issued. There is still more to the analysis and issues of proportionality, but showing relevant ESI once existed is the first step to establishing spoliation.

How to Get an eDiscovery Evidentiary Hearing

Judge David Waxse waded into a case that highlighted issues in parties not cooperating and possible inadequate preservation, search and production of ESI.  Chura v. Delmar Gardens of Lenexa, Inc., 2012 U.S. Dist. LEXIS 36893, 7-8 (D. Kan. Mar. 20, 2012).

The litigation involved an employment dispute with claims of sexual harassment, hostile work environment and other employment-based causes of action.

The Plaintiffs challenged the sufficiency of the responses to multiple discovery requests, starting with their first request for production.

Plaintiffs’ Request for Production 1 directed the Defendant to produce information from 10 individuals identified by the Defendants with knowledge of the facts in the lawsuit.  Chura, at *3-4.

The Defendants’ reply referred the Plaintiffs to the complaints and personnel files of the Plaintiffs. Chura, at *4.

The Plaintiffs claimed the Defendants failed to produce the “written complaints, any emails or phone logs, the investigation files, and their personnel files.” Chura, at *4. The production also lacked ESI one would normally expect in employment litigation, such as

[E]mails between Defendant’s managers and witnesses regarding Plaintiffs’ allegations or Defendant’s defenses;

[N]otes by the human resource director from the investigation she conducted as a result of Plaintiffs’ complaints about the alleged harasser and the environment at the nursing facility where Plaintiffs worked; and

[R]eports and emails to the corporate office regarding the complaints.

Chura, at *4.

The production void also lacked any information created by the HR Director or facility administrator regarding their investigation; complaints by the Plaintiffs; complete wage payment records; performance appraisals; or witness statements.  Chura, at *5-6. As the Plaintiffs argued and Court recounted:

It does not make any sense that in response to numerous complaints from employees about the work environment that a corporate human resources manager would be sent to investigate and not create a single document reporting her findings to Defendant’s corporate managers.

Chura, at *6.

The Court found it was unlikely the Defendant had no responsive information besides the personnel files and discrimination complaints.

Judge Waxse also stated it was “questionable” that the investigation of the complaints had no email, correspondence of other reports.  Chura, at *6.

Further, the Plaintiffs claimed the Defendants’ search methodology was simply running an Outlook search on the alleged harasser’s computer. Chura, at *7.

The Court ordered the following evidentiary hearing over the discovery dispute:

Based upon the limited information provided in the parties’ briefing, the Court cannot determine whether Defendant met its duty to both preserve relevant evidence or conduct a reasonable search for ESI responsive to Request No. 1. It is unclear what actions Defendant undertook in order to preserve and search for ESI responsive to Request No. 1. The Court finds that Defendant’s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents, raises justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to the discovery requests.n5 The Court will therefore set an evidentiary hearing regarding Defendant’s efforts to preserve and search for ESI responsive to Plaintiffs’ interrogatories and requests for production. Based on the evidence presented at the hearing, the Court will determine whether Defendant made reasonable efforts to preserve relevant evidence and search its computer systems for ESI responsive to Request No. 1.

Chura, at *7-8.

Evidentiary hearings were also granted to several other challenges to the sufficiency of the Defendants’ searches over other discovery requests.

Bow Tie Thoughts

There are many attorneys that have a difficult concept with searching for electronically stored information.  I have met some who consider “search” merely running a single keyword search in Outlook.

For some attorneys, asking them to define “search” is par with asking them to define “liberty.”  There are many forms of “searching” and it is important to understand how the term is being used in the different stages of litigation.

“Search” may mean to a corporate client using a content management system to identify custodians, date ranges and other determining information to identify ESI for preservation.  This ESI can then exported out for analysis in an “early case data assessment” platform or processed for document review.

“Search” may mean to an individual party the collection of data with a strategic collection methodology that can be defended in court. This can include preserving the information with target search technologies to find relevant ESI, such as AD Triage or PinPoint Labs Harvester.

A lawyer with a “small” case in the single Gigabytes may want to use a product like Proof Finder by Nuix for searching the dataset for relevant ESI.

Moving to the other side of the data spectrum, a party with double digit Terabytes of data may want to “search” the dataset with a “computer-assisted review” application, such as OrcaTec’s Document Decisioning Suite. There are several products on the market that can “learn” from a reviewing attorney and identify relevant other relevant ESI based off the attorney’s relevancy determinations.

The actual review of electronically stored information often requires running search terms across ESI based off a propounding party’s discovery requests.  All litigation support review platforms have basic search technology, in addition to different advanced analytical tools.

For example, XERA from iConect can identify relationships between email messages with its “6 Degrees – Relationship Visualizer.”

There is amazing technology in the market to solve eDiscovery challenges, however, there is still a huge “search” problem in the preservation and production stages of a lawsuit.  Many of these issues can be resolved by using the right technology by people with knowledge on how to use the technology correctly. The right technology will differ case to case, which only highlights the need for lawyers to work with consultants who understand eDiscovery tools as they relate to different clients.

(Disclosure: I have business relationships with all of the companies mentioned in this post and friends at each organization).

Recognizing Reality with Preserving Social Media ESI

In a trademark dispute between restaurants, the Plaintiff brought a sanctions motion, claiming spoliation of the Defendant’s Facebook profiles.  Katiroll Co. v. Kati Roll & Platters, Inc., 2011 U.S. Dist. LEXIS 85212, 1-2 (D.N.J. Aug. 3, 2011).  The Court denied the sanctions motion over the Facebook profiles.

The Plaintiff first argued that the Defendant failed to preserve his Facebook pages in PDF format, because the Defendant took down the pages after the Plaintiff sent a take down notice.  Katiroll Co., at *9.

The Court held sanctioning the Defendant for following a take down request would be unjust, even if the Plaintiff’s take down notice was not legally proper.  Katiroll Co., at *9, fn 1.

The Plaintiff also argued that the Defendant changing his Facebook profile photo with infringing trade dress led to the loss of discoverable evidence.  The Court very reluctantly clicked “Like” on this argument, but did not impose any sanctions.  Katiroll Co., at *9-11.

The parties agreed that when a user changes a Facebook profile photo, the user changes the photo associated with each status message or post they have done in the past.   Katiroll Co., at *9.

The Defendants argued that sanctions were not warranted, because the Facebook profile was a public website, which the Plaintiffs could have preserved themselves.  Katiroll Co., at *10.

The Court noted that case law has held that public websites are still within the control of those who own the websites.  Katiroll Co., at *10.

The Court described the Defendant’s position as “an attempt to “pass the buck” to Plaintiff to print websites that Defendants are obliged to produce.”  Katiroll Co., at *10.

The Court found that the Defendants were in “control” of the Facebook profile, stating:

“Given that Defendants have a discovery obligation to produce them and that only Defendants knew when the website would be changed, it is more appropriate for Defendants to have that burden.” 

Katiroll Co., at *10.

However, the Court acknowledged that changing a Facebook profile photo is a “common occurrence” and users often change their profile photos weekly.  Katiroll Co., at *10-11.

The Court stated it was not surprising the Defendant changed his profile photo during the litigation and further that the Defendant did not realize that changing his profile photo would “undermine discoverable evidence.”  Katiroll Co., at *11.

The Court held that the spoliation was unintentional, however, there was some prejudicial loss to the Plaintiff.  Katiroll Co., at *11.

The Court constructed the following solution:

Defendant was to coordinate with the Plaintiff to change his profile photo back to the infringing photo.  This would not be an additional act of infringement.

The Plaintiff would print any of the posts they considered made their case.

The Defendant would change his profile photo to a non-infringing photo immediately after the Plaintiff printed the posts they needed.

Katiroll Co., at *11-12.

Bow Tie Thoughts

The Court did a respectable job recognizing the realities of social media usage, control of public profiles and constructing a remedy for the preservation and production of the ESI that did not sanction the Defendant.

The preservation of electronically stored information on social media websites can cause a headache in determining the right method to preserve it.  Given the number of iPhones and Droids in use, status messages, photo uploads and email can be created almost non-stop.

The simplest method is to simply print the Facebook profile, either as a hard copy or a PDF.  Screen captures are another option.  There are additional specialty software solutions for capturing websites such as HT Track and others designed for social networking sites such as Nextpoint. There are many tools on the market currently and others will continue to be developed in the future.