“The plaintiffs have not explained why the City of Chicago had no authority to enact legislation designed to protect the safety of its roads in this way, nor can we think of any restriction on its powers under either federal or state law that is so obvious we would need to take note of it here. The district court correctly dismissed the plaintiffs’ Fourth Amendment claim.”

Schor v. City of Chicago, 576 F.3d 775, 779 (7th Cir. 2009)

Hands Free Means Hands Free in Chicago

In case anyone was wondering, those Hands Free laws are Constitutional, at least in Illinois. 

In Chicago, three drivers ticketed for driving while on the phone challenged the Constitutionality of the “Hands Free” law. Schor, 779.

The law states no person is to drive a vehicle while using a cell phone, unless they have a hands free device (or three other exceptions). 

The Plaintiffs claimed the police violated the 4th Amendment  when the Plaintiffs were pulled over for talking on the phone.

It is well established law that the Fourth Amendment is not violated if a police officer has probable cause for a traffic stop.  Schor, 779.

In this case, the police officers saw the Plaintiffs violating the Hands Free law by using their cell phones without a hands free device.  As such, the violation of the valid traffic law provided probable cause for the officers to stop the Plaintiffs.  Scho, 779.

Cell Phone Search During a Traffic Stop?

If someone is stopped for breaking a Hands Free law, an interesting question is whether the police can do a warrantless search of the cell phone.

As a preliminary matter, a person has a reasonable expectation of privacy over their cell phone. United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007).

In United States v. Zavala, the police officer checked a driver’s cell phone during a traffic stop. 

The Government argued that a “phone check” was the same as asking for someone’s driver’s license and proof of insurance.  United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008).

The Court thought otherwise, stating that a cell phone is totally different then a driver’s license and proof of insurance.  First, a cell phone is not issued by the state, like a driver’s license, nor required by law, such as proof of insurance in most states.  Zavala, 577.  The Court noted that cell phones are more than just calling devices, containing private information, such as text messages and address books.

The Court went on to state that going through a cell phone at a traffic stop was like “general rummaging in order to discover incriminating evidence.” Zavala, 577. 

Conversely, the Finley Court held that a warrantless search of a cell phone was proper after the arrest of a suspect, thus there was no Fourth Amendment violation in retrieving the call records and text messages from the suspect’s cell phone. Finley, 259-260.

What will be the search and seizure law if someone is stopped for breaking a Hands Free law? A court in one of the 18 (and growing) states with Hands Free laws will answer this question.

Bow Tie Thoughts

It will be an interesting question if a police officer making a traffic stop can ask for an individual’s phone to verify the time of the last call and if that search would violate the Fourth Amendment.

I personally think it would violate the Fourth Amendment.  I believe courts would follow the logic of Zavala, because of the personal information contained on Smartphones, and prohibit the search of a cell phone on a traffic stop for violating a Hands Free law.  The practice also just smacks of “rummaging” in someone’s phone “in order to discover incriminating evidence.” However, this is an unsettled issue of law.

Plaintiffs brought a motion for a new trial because of an email sent by a juror to the Plaintiffs’ attorney four days after a defense verdict.  Wilgus v. F/V Sirius, Inc., 2009 U.S. Dist. LEXIS 100094 (D. Me. Oct. 27, 2009).  The email stated:

 [D]id you know your plaintiff[s] advocated the use of mushrooms and weed smoking, and binge drinking all over the internet? . . . It['s] really sad what happened but with all the work going into this don['t] you think you should have address[ed] this issue and known such things so they could clean up their acts before court? I’m just trying to help.[] [I]f you want more info and insight [I] will help you.

Wilgus, at *2.

How did the juror learn this information? 

Facebook.  Wilgus, at *10.

How on Facebook you ask? 

The juror sent the Plaintiffs friend requests after the trial.  Wilgus, at *10.

And as you can guess, the Plaintiffs accepted the friend request.

After the Plaintiffs’ attorneys returned from low Earth orbit, the Judge held an investigation, asking questions of the juror at issue and the jury foreperson.  The juror claimed he did not “friend” the Plaintiffs until after the trial.  The juror also claimed he discovered photos on the Plaintiffs’ Facebook profiles that motivated him to email the Plaintiffs’ attorney.  Wilgus, at *10. 

The juror claimed that the information on Facebook was never discussed during jury deliberations.  Wilgus, at *10.  Additionally, the juror claimed the Facebook material would have not influenced him during deliberation, because he did not know about the Facebook photos at that point in time.

The Judge found no basis for the juror being untruthful as to when the juror found the Facebook material, which was after the verdict.  Wilgus, at *12-13.  As such, the Court denied the Plaintiffs’ motion for a new trial.

Bow Tie Thoughts

This case is a giant warning sign to any trial lawyer and judge on jurors and Facebook.  The idea of a juror “friending” a party at any point in time is troubling.  Moreover, trial attorneys really need to be aware of party admissions their clients might be making in status messages or damning their own case with photos.  If a juror can find it, watch out for the opposing party.

In United States v. Shelnutt, a member of the press requested the right to “Tweet” a criminal trial on Twitter.  The court denied the request pursuant to Federal Rule of Criminal Procedure Rule 53. United States v. Shelnutt, 2009 U.S. Dist. LEXIS 101427 (M.D. Ga. Nov. 2, 2009). 

Federal Rule of Criminal Procedure Rule 53 states, in relevant part:

“[T]he court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Shelnutt, at *2, citing Fed. R. Crim. P. 53

The Court held that the term “broadcasting” includes sending electronic messages contemporaneously from the trial, which the Court held includes Twitter.  Shelnutt, at *2-3.

First Amendment Concerns

The Court held the First Amendment was not violated by the prohibition of Twitter in the courtroom. 

The Court stated that Federal Rule of Criminal Procedure Rule 53 is well established as Constitutional.  Shelnutt, at *4.  Additionally, the Press has the right to attend the trial, listen to the evidence, evaluate the arguments and report on the proceedings.  As such, there is no restriction on the right to report on the criminal trial.  Shelnutt, at *4-5.  In short, these sound like “time, place and manner” restrictions on where the broadcasting of a trial can occur. 

Bow Tie Thoughts

This is a new spin on cameras in the courtroom.  Just as a judge would prohibit reporters setting up a broadcast booth in her courtroom (and thus creating a media circus where lawyers put on silly hats and do bad rhymes during closing argument), it is understandable why a judge would not want a “Tweetup” taking place during a trial.

Southeastern Mechanical Services, Inc., v Brody, et al., is the story of how wiping the data off your BlackBerry can result with the Court having you drawn and quartered.  Not with horses, but with adverse inference instructions.

In a trade secret case where Individual Defendants left the Plaintiff’s company and went to the Defendant’s company, issues with BlackBerry data spoliation exploded like a fireball in the night.  Southwestern Mechanical Services, Inc., v Brody, et al., 2009 U.S. Dist. Lexis 85430 (August 2009).  There is an “app” for that sort of spoliation called adverse inference instructions.

The key facts of the case took place in a matter of days.  The three Individual Defendants purchased their BlackBerries between May 28 to May 30, 2008.  The devices were used for email, phone and text messaging. 

The Individual Defendants’ BlackBerries were synced with the Defendant’s email server between June 3 to June 4, 2008.  SMS, at *5-6. 

A demand letter was sent from the Plaintiff on June 6, 2008 and email messages were preserved on June 10.  SMS, at *7.  A temporary restraining order (TRO) was issued on June 13 and the Individual Defendants were instructed to return their laptops and BlackBerries on June 17, 2008.  SMS, at *7-8.

The Defendants represented that no email messages were lost from the Individual Defendants’ BlackBerries or laptops because they were synced to the Defenant’s BlackBerry Enterprise Server.  SMS, at *4.  As such, the email messages were not on any hard drives, but an email server.  SMS, at *6.

Forensic Examination of the BlackBerries

After the execution of a litigation hold and the physical sequestering of the Individual Defendants’ BlackBerries and computers, the Plaintiff’s expert performed a forensic examination using Paraben Device Seizure software on the BlackBerries.  SMS, at *9-12.

The Plaintiff’s expert quickly determined the BlackBerries had been wiped clean: No phone records, no text messages, no email messages or applications existed on the devices.  SMS, at *10.  Moreover, the data on the devices was different from what would be on a brand new BlackBerry and different from one only used as a phone.  SMS, at *11, fn 8.

This sort of thing does not happen by accident.  The only ways this would happen (according to the expert) would be by a “hard reset” or someone entered the incorrect password ten times.  SMS, at *11.

The Defendant’s forensic expert also determined that the BlackBerry SIM cards contained some contacts and text messages, but not emails messages. SMS, at *12.

Dial S for Spoliation

For those who are not familiar with spoliation, it is the intentional destruction of evidence.  SMS, at *13.  To prove sanctions for spoliation under Florida law, a party must show the following: 

1)       The evidence existed at one point in time;

2)       There was a duty to preserve the evidence on the part of the spoliator; and

3)       The evidence was crucial to the movant’s prima facie case.

SMS, at *14. 

The Court rocketed through these three factors answering all in the affirmative.  SMS, at *15.

The Court found that there were circumstances showing the destruction of the email, text messages and phone data was in bad faith. SMS, at *16-17.  The Court found the Individual Defendants to not be credible in explaining the data loss, because the expert testimony showed that 3 of the 4 ways the data could have been lost were by intentional acts.  SMS, at *17.  Further, the Individual Defendants had both the motive and opportunity to erase the data on their BlackBerries. SMS, at *16-17.

Furthering the Individual Defendants’ credibility gap, there was evidence of other deleted data.  One Individual Defendant’s prior computer he used while employed by the Plaintiff had all of its email and contacts deleted.  The other Individual Defendant used a software program to delete all of the data on it before returning it to the Plaintiff.  SMS, at *19-20.   

The Court found that the appropriate sanction for the loss of data was an adverse inference instruction regarding the Individual Defendants failure to preserve data on BlackBerries that would be advantages to Plaintiffs and disadvantageous to the Individual Defendants. SMS, at *23.  While default judgment was avoided, the Court’s irritation is visible throughout the opinion.  

Bow Tie Thoughts

The Court’s analysis of the BlackBerry preservation and data deletion was very well done.  This case highlights how data on a BlackBerry (or any Smartphone) can be deleted and the importance of having procedures to enact a litigation hold on these devices.

Social networking litigation will be written by the end users of those websites.  In Bass v Miss Porter’s School, the Defendant school sought from the Plaintiff discovery of her alleged teasing and taunting on Facebook.  Bass v. Miss Porter’s Sch., 2009 U.S. Dist. LEXIS 99916 (D. Conn. Oct. 27, 2009).

The Plaintiff objected to the Facebook discovery request on the following grounds:

1) The Facebook information was “irrelevant and immaterial” and was “not reasonably calculated to lead to the discovery of admissible evidence;” and

2) “[Plaintiff's] ability to produce responsive documents was severely curtailed by Defendants’ actions in disconnecting the Plaintiff’s access to her school email and intranet access prior to the filing of this lawsuit.” Bass, at *2.

After subpoenaing Facebook, Facebook agreed to produce “reasonably available data” from the Plaintiff’s profile from January 1, 2008 to May 1, 2009.  Bass, at *2.

The Court ordered the Plaintiff to produce 1) all responsive Facebook discovery to the Defendant and 2) everything produced from Facebook to the Court for in camera review.  Bass, at *3.

The resulting production was 100 pages (apparently printed out) to the Defendant and 750 pages produced to the Court.  Bass, at *3.

The Court was noticeably frustrated with the Plaintiff’s attorney.  The Court stated the production offered “no guidance as to the grounds or basis on which her counsel made the determination of which documents to produce to Defendants.” Bass, at *3.

The Court took direct aim Plaintiff’s claim the Facebook discovery was irrelevant after reviewing the Facebook production by date, sender/recipient and subject matter.  Bass, at *3.  The Court found:

The selections of documents Plaintiff disclosed to Defendants and those she referred for in camera review reveal no meaningful distinction. Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the content’s posting. Therefore, relevance of the content of Plaintiff’s Facebook  usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff’s own determination of what maybe “reasonably calculated to lead to the discovery of admissible evidence.” Bass, at *3-4.

The Court overruled the Plaintiff’s objection to producing Facebook discovery, especially in light of the fact the in camera production contained communications clearly relevant to the lawsuit.  Bass, at *4.

Bow Tie Thoughts

This is a wonderful short and sweet opinion on using Facebook information in discovery.  The Court’s recognition that Facebook usage can reflect the state of mind of a user was excellent to see.  The only area somewhat concerning about the opinion was the fact the Facebook discovery was printed and not maintained in a digital form of production.

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.

In a case management hearing, the parties were directed to consider the following electronically stored information (ESI) issues at their Rule 26(f) conference for drafting their proposed Rule 16(b) order:

With regard to any discoverable electronically stored information (ESI) the parties may have, the Court further requests that the joint discovery plan also include any issues and concerns related to the following:

a. What ESI is available and where it resides;

b. Ease/difficulty and cost of producing information;

c. Schedule and format of production;

d. Preservation of information; and

e. Agreements about privilege or work-product protection.

 Wallace v. Tindall, 2009 U.S. Dist. LEXIS 89669, *2-3 (W.D. Mo. Sept. 29, 2009).

It is good to see Courts ordering parties to consider issues such as whether ESI is reasonably accessible, the form of production, preservation and privilege concerns in case management orders.  While the above order is actually brief on the e-Discovery issues, consider the new California Rules of Court section 3.724(8), which require the following topics to be discussed at the “Meet & “Confer:”

Any issues relating to the discovery of electronically stored information, including:

(A) Issues relating to the preservation of discoverable electronically stored information;

(B) The form or forms in which information will be produced;

(C) The time within which the information will be produced;

(D) The scope of discovery of the information;

(E) The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

(F) The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

(G) How the cost of production of electronically stored information is to be allocated among the parties;

(H) Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information;

Case management orders such as the above and the new California Rules of Court acknowledge the reality that every case will have electronically stored information of some kind.  Lawyers must deal with these realities early and not wait for them to become problems.

Please join D4 on October 28, 2009 at 12:00 pm Pacific Time and 3:00 PM Eastern Time for the webinar “Out of the Holding Pattern.” To register, please click here.     

Recent case law has highlighted the importance of proper implementation of litigation holds.  During the summer of 2009, there were many cases that highlighted attorneys and litigants failing in their duty to preserve electronically stored information (ESI).  These failures included not enacting litigation holds when required to do so, clients not following preservation obligations, and parties simply ignoring the duty to preserve. 

Join John Jablonski, co-author of 7 Steps for Legal Holds of ESI and Other Documents (ARMA 2009), and Joshua Gilliland, D4’s Professional Development Manager and author of the Bow Tie Law Blog, for a discussion of recent case law and best practices for enacting litigation holds.  Learn about the trends from the newest cases on the pitfalls in preserving ESI and strategies for success.    Webinar attendees will learn the seven steps for an effective litigation hold.  This information is pivotal for attorneys, paralegals and corporate records managers in meeting their obligation to preserve ESI.   

About the Speakers:  

John Jablonski, Esq., is a partner at Goldberg Segalla, LLP in Buffalo, NY and concentrates his practice on commercial and business litigation, construction litigation, product liability litigation, and railroad litigation.  He has 14 years of litigation experience and has tried numerous cases to verdict in State and Federal Courts.   John consults with clients and attorneys within the firm on electronic discovery issues and legal holds. 

John is a frequent presenter and author on electronic discovery, electronic evidence investigation and preservation, best practices for corporate legal hold guidelines, and implementation of legal holds.   Follow John on Twitter @JohnJablonski  

Joshua Gilliland, Esq., is a California attorney who focuses on electronic discovery issues for D4, LLC.  Josh has conducted over 100 e-Discovery seminars, covering all of North America, from St. Thomas to Anchorage, addressing the e-Discovery issues from the Federal Rules of Civil Procedure and Federal Rules of Evidence.  Josh is the blogger for the Bow Tie Law Blog, covering issues of identifying anonymous bloggers who commit defamation, ethical standards for electronic discovery, personal jurisdiction and other timely issues. 

Josh has also been an invited speaker at bar association events and trade shows, in addition to serving as a guest lecturer on e-Discovery at several law schools.  He effectively applies his real-world knowledge to show lawyers how they can increase their efficiency and master factual issues using litigation support technology.   Follow Josh on Twitter @BowTieLaw

In a contract dispute regarding a shipping vendor, the Plaintiff brought a motion to compel the collection and processing of the entire contents of Defendants’ hard drives, network drives, and user files.  Unishippers Global Logistics, LLC v. DHL Express (USA), Inc., 2009 U.S. Dist. LEXIS 94844 (D. Utah Oct. 12, 2009).

In not much of a surprise, the Court said “No.”

Please Sign Here: Meet & Confer over Custodians

As the discovery dispute began, the parties agreed to provide each other a list of custodians to be searched for responsive documents.  Unishippers Global Logistics, at *4.  The Defendants identified 13 opposing custodians and the Plaintiff 36 custodians.  Id. 

The litigants agreed to produce “all emails between or among the custodians” and to perform searches on internal and external email networks.  Unishippers Global Logistics, at *4. 

The Dispute: Imagining Network Files, User Files & Hard Drives

The Plaintiff claimed the Defendant refused to “image and search the network files, user files, and the hard drives of its identified custodians for responsive documents.” Unishippers Global Logistics, at *4. 

 One can imagine the Gigabytes very quickly expanding for ESI review with 36 custodians…

The Motion to Compel

You can sense the Court was not happy with the Plaintiff.  They failed to comply with local rules on discovery disputes and brought the motion to compel without first receiving or reviewing the Defendants’ production.  Unishippers Global Logistics, at * 6.

The Plaintiff wanted the Court to order the Defendants to “conduct relevant word searches of its custodians’ user files, network drives, and individual hard drives for responsive documents.” Unishippers Global Logistics, at * 6.  Moreover, the Plaintiff took issue with the Defendant collecting and reviewing email from custodians and collecting non-duplicative ESI from other sources, and then producing accordingly.  Unishippers Global Logistics, at * 6. 

The Defendants opposed the motion as premature and that the Plaintiff wanted everything electronic searched.  Unishippers Global Logistics, at * 6.

The Court Order

The Court held the Plaintiff’s arguments were without merit. Unishippers Global Logistics, at * 7.

First, it is self-evidence that a producing party “must determine whether it possesses relevant documents that are responsive to a particular discovery request.” Unishippers Global Logistics, at * 7.  To be blunt, that is just how document review and discovery works. 

Secondly, the Court held it was unnecessary and unduly burdensome to force the Defendant to “collect and process the entire contents of the custodians’ hard drives, network drives, and user files,” that were known to be non-relevant.  Unishippers Global Logistics, at * 7.  

Third, the Defendant explained their email discovery protocols, which the Court seemed to accept as defensible.   Unishippers Global Logistics, at *8-9.   

The Court based its ruling on Federal Rule of Civil Procedure Rule 26(b)(2)(C) which states a court “must limit the frequency or extent of discovery . . . if it determines that . . . the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Unishippers Global Logistics, at * 7, citing  Fed. R. Civ. P. 26(b)(2)(C)(i).  Moreover, a court must also limit discovery where “the burden or expense of the proposed discovery outweighs its likely benefit.” Unishippers Global Logistics, at * 7-8, citing Fed. R. Civ. P. 26(b)(2)(C)(iii).

Bow Tie Thoughts

This motion probably could have been dismissed as not ripe or for procedural defects.  Additionally, the Plaintiff would have been in a much stronger position if they actually had reviewed the Defendant’s production. 

The Plaintiff did not make an articulable basis that the Defendant somehow failed in their discovery production, such as a Rule 26(g)(1) violation.  However, if there are later production discrepancies, we may see a follow up to this case.

In an ADA employment case, the Plaintiff sought spoliation sanctions and an adverse inference instruction for the destruction of electronically stored information (ESI). Scalera v. Electrograph Sys., 2009 U.S. Dist. LEXIS 91572 (E.D.N.Y. Sept. 29, 2009).

The Plaintiff lost.

The Discovery Requests

The Plaintiff sought the following discovery: 

1) All emails sent or received by Defendant’s employees regarding Plaintiff’s medical condition;

2) All emails sent by Defendant’s employees regarding Plaintiff’s request or need for any accommodation for her medical condition;

3) All emails sent on Defendant’s “Inter-Office email system” to and from Plaintiff from 2005 to the present, “including any emails predating Plaintiff’s employment;” and

4) All “backup and/or archive (computer) data which was generated by Defendants” and related to Plaintiff’s employment. Scalera, at *5.

Discovery Production History

In the Plaintiff’s version of the facts, the Defendant only produced a “handful” of email.  Scalera, at *5. 

The Defendant provided 16 backup tapes to an electronic discovery service provider.  Scalera, at *6.  Only two of the tapes met “the criteria for restorable data.”  Scalera, at *6.  The vendor was unable to restore the backup tapes, which the Plaintiff claimed spoliation that required an adverse inference sanction.  Scalera, at *6. 

Requirements for Adverse Inference Instructions

A party must prove the following for spoliation warranting an adverse inference instruction: 

1) “The party having control over the evidence had an obligation to preserve it at the time it was destroyed;”

2) “The records were destroyed with a ‘culpable state of mind;’” and

3) “The destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”

Scalera, at *7, citing Toussie v. County of Suffolk, 2007 U.S. Dist. LEXIS 93988, at *6 (E.D.N.Y. Dec. 21, 2007).

The Duty to Preserve

As one can imagine, the Plaintiff argued the duty to preserve for her discrimination claim arose very early, after she fell down steps and sent a letter to the building landlord.  Scalera, at *7-11, 28.The Court disagreed and held the duty to preserve arose when the Defendants received the EEOC charge for discrimination.  Scalera, at *25.

The Court found the Plaintiff’s arguments for when the duty to preserve began pushed logic “beyond the boundary of reasonableness.”  Scalera, at *28. 

The Plaintiff argued that since the Defendants knew the Plaintiff had a “disability,” they should have known she needed a handrail at the side door to prevent injury; therefore her injury should have alerted the Defendants the Plaintiff would have sued them for discrimination.  Scalera, at *28.  The Court did not agree.

The Court also held that filing a worker’s compensation claim did not trigger a duty to preserve for a possible discrimination claim.  Scalera, at *29-30. 

The Court effectively held that the tort accident and following worker’s compensation action did not trigger the duty to preserve for a discrimination claim.  The Defendant’s duty to preserve began at the time the Defendant received the EEOC charge.

The HR Hard Drive

The Defendant’s HR manager retired at least one month, possibly two, after the Defendant had a duty to preserve evidence.  However, because of the Defendant’s policy of erasing employee hard drives after they leave, the Defendant was unable to search the HR person’s computer.   Scalera, at 36-37.  This amounted to a failure in the Defendant’s duty to preserve. 

The Defendant tried playing “preservation Twister” by dancing around the HR policy of printing all HR emails and retaining them as hard copies as “no harm, no foul” argument for erasing the HR manager’s hard drive.  Scalera, at *37.  The Court noted the Plaintiff had produced emails that the Defendant had not produced, which openly questioned whether all HR emails were printed.  Scalera, at *38.

Emails Going Rogue

The Defendant’s production included email messages with partial email strings that were “personnel or employment records.”  Scalera, at *38.  The Plaintiff also had email messages requesting reasonable accommodations that the Defendant did not produce.  These messages were required to be saved for one year under the ADA.  Scalera, at *39. 

Surprisingly enough, these failures were not a breach of the duty to preserve.  The one year retention period under the ADA would have ended prior to the EEOC action and thus before the triggering event duty to preserve.  Scalera, at *40-41.

A Culpable State of Mind

The Court found the Defendant acted negligently in preserving ESI.  Scalera, at *44.  Based on declarations, the Court found that the Defendant did not attempt to preserve ESI until two months after the EEOC complaint. 

The General Counsel for the company took action after receiving the EEOC by meeting with employees who interacted with the Plaintiff and “spoke to” employees about saving ESI. Scalera, at *42.  The attorney was confident that all the “necessary” documents had been preserved after talking with IT, learning about the backup tapes and the fact the company did not have a data destruction policy.  Scalera, at *42.

The Court was not thrilled with the Defendant’s preservation attempts.  The Court noted that searches of the key player hard drives were either not done or finished after the EEOC charge was received. Scalera, at *44.  Moreover, two of the people the Corporate Counsel spoke to never had their hard drives searched.  Scalera, at *45.  Additionally, the IT person’s declaration showed that some information on hard drives was never backed up.   Scalera, at *45.  These failures could have resulted in the loss of electronically stored information.  Scalera, at *45.

The final kicker was that Corporate Counsel “speaking to” key employees was not a formal litigation hold.  Scalera, at *45.  Case law requires a party engage in the following steps for litigation hold compliance:

1) Issue a litigation hold at the outset of litigation or whenever litigation is reasonably anticipated;

2) Clearly communicate the preservation duty to “key players;” and

3) “Instruct all employees to produce electronic copies of their relevant active files” and “separate relevant backup tapes from others.”

Scalera, at *46, citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 433-34 (S.D.N.Y. 2004).

The Court stated that if a proper hold had been in place, the HR manager’s hard drive would have been searched instead of erased.  Scalera, at *47.

The Court found that the Defendant’s communications directly resulted in the loss of ESI, which was negligent.  Scalera, at *47-48. 

Relevance: The Sanction Killer

Relevance can be proven by showing a party acted with gross negligence (a culpable state of mind) or offering some “…extrinsic evidence tending to demonstrate that the missing evidence would have been favorable to it.” Scalera, at *49.

In cases where a party seeks an adverse inference instruction, the moving party must show the lost evidence would have been favorable to the moving party.  Scalera, at *49.

The Plaintiff did not establish “relevance” as a matter of law because the Defendant only acted negligently, not with gross negligence.  Scalera, at *49-50. 

Putting a spin on extrinsic evidence, the Plaintiff offered email messages that were if anything FAVORABLE to the Defendant, showing that the Defendants made reasonable accommodations for the Plaintiff.  Scalera, at *51. 

Bow Tie Thoughts: A Swing and a Miss

The Defendant in this case had a poorly executed litigation hold (if you could call oral instructions a litigation hold) and botched preservation of hard drives.  However, such failures are not a “strict liability” offense for instant adverse inference instructions.  A moving party still must prove that the lost evidence would have been favorable to their position.  That did not happen here.