2012 eDiscovery Case Summaries

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Dec 11

Judges continue to delve more deeply into e-discovery issues as they become more comfortable with the nuts and bolts of the process.  There has been a significant uptick in cases involving sanctionable e-discovery conduct, discoverability of social media and the maintenance of litigation hold policies in the last quarter of this year.  As the frequency of sanctions increases, so should the care attorneys and clients take in collecting and processing ESI.  Here are some of the highlights in the last quarter regarding e-discovery cases:

SANCTIONS/SPOLIATION

In Taylor v. Mitre Corp., the court was presented with a case sounding more like a mob-style hit than an e-discovery spoliation case.  Before opposing counsel had the opportunity to look at plaintiff’s hard drive, he took a sledgehammer to his desktop and then dumped the remains in a landfill.  He did not stop there, though.  When asked to produce the data from a new computer, he made the ad hoc decision to use two wiping tools to clean off the new computer before producing the computer for inspection.    Plaintiff was rewarded for his handy work with a spoliation order from the court. The court found that dismissal of plaintiff’s claims was warranted for his “egregious” discovery conduct in erasing potentially relevant evidence.  The court also recommended that plaintiff pay defendant’s reasonable attorney’s fees and costs incurred as a result of the spoliation.  On appeal, the recommendations were adopted by the district court.

In Carrillo v. Schneider Logistics, Inc., the court concluded that the defendant failed to comply with its discovery obligations by 1) failing to conduct a reasonably diligent search, 2) improperly withholding responsive documents, and 3) failing to take adequate steps to ensure preservation.  The court ordered monetary sanctions and that an outside vendor be retained to search for and collect defendant’s responsive documents and to determine if any documents had been permanently deleted, at defendant’s expense. 

The court based its decision on the fact that the defendant “repeatedly represented that diligent searches had been made and that all responsive documents had been produced, only to turn around and ‘find’ more documents after plaintiffs proved those contentions were false” and that defendant had still not searched a “significant portion” of its electronically stored information or “provided any satisfactory assurance to the court that such documents had not been destroyed during the course of litigation.”

Most interestingly about the decision is that the court took note of defendant’s failure to search certain of its employees’ email accounts--which were maintained on defendant’s customer’s servers and which utilized the customer’s domain name in the address. 

LITIGATION HOLD

In Scentsy Inc. v. B.R. Chase LLC, the court addressed defendants' allegations of spoliation and focused in particular on plaintiff’s litigation hold and document retention policies, which it concluded were “clearly unacceptable.”  Plaintiff’s legal hold consisted of the General Counsel speaking “to the individuals that would have information regarding [the relevant issues], and asked—requested that those documents not be deleted.”  The oral litigation hold was issued two months after plaintiff claimed to have first anticipated litigation.  In the meantime plaintiff’s document retention policy resulted in the routine deletion of emails over six months old, while all other documents were preserved “indefinitely” or until the creator chose to delete them.

The court allowed depositions to be taken at plaintiff’s expense and indicated its willingness to issue an adverse inference instruction or to dismiss some or all of plaintiff’s claims if it was determined that spoliation occurred.

In United States ex rel. Baker v. Cmty. Health Sys., Inc., the court determined that sanctions were warranted for the government’s untimely and inadequate litigation holds. 

The court found that the litigation holds were inadequate.  In particular, the court took issue with the government’s failure to preserve information from two key employees, including “the most informed person about the donations and taxes that are the main elements of this case.”  Both employees’ information was lost as the result of the government’s failure to preserve it following their retirement--which occurred well after the date the government should have anticipated litigation.  Counsel was also called out by the court for her lack of awareness regarding who was responsible for preservation of certain information and her failure to specifically identify custodians subject to the litigation hold.

The court recommended that that the government be ordered to produce documents that it had withheld as privileged and/or work product, that defendants were entitled to recover reasonable attorneys fees and costs, and that the government must show cause why additional searching should not be required.

SOCIAL MEDIA

In E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., which involved allegations of sexual harassment, the court ordered broad discovery of class members’ social media, text messages and email.

The EEOC brought claims alleging that the defendant subjected a class of female employees to sexual harassment and retaliation.  Accordingly, defendant sought discovery of “numerous categories of documents” related to the class members’ emotional and financial damages as well as credibility and bias.  Among the discovery sought were the contents of the class members’ social media accounts and text messages.

The court indicated that many class members had utilized “electronic media to communicate” about potentially relevant topics which they have “voluntarily shared with others” and that if there were relevant documents or information that could lead to the discovery of admissible evidence “the presumption is that it should be produced.”  The court noted that one of the class members even went so far as to post statements to her Facebook account regarding her financial expectations in the lawsuit.

The court ordered that the class members produce all cell phones, social media website access information and identify any email account or blog used to communicate with others or post communications or pictures.

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