Welcome to the new eLessons Learned

eDiscovery Written by Law Students

eDiscovery Written by Law Students

eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.

Law + Technology + Human Error

Law + Technology + Human Error

Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.

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New to the eDiscovery world?

Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There

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When are Details of an Expert Analysis NOT Compelled?

Dover v. British Airways, PLC, involves a class action lawsuit where the plaintiffs alleged the airliner unlawfully imposed fuel surcharges on its frequent flyer program rewards flights.  The plaintiffs supported their claims with a regression analysis.  This statistical study, also known as the r-squared analysis, estimates the relationship between two variables and allegedly shows fuel surcharges were mostly unrelated to the changes of fuel prices.  British Airways served the plaintiffs with a request for all documents relating to the r-squared analysis.  However, that request was denied by Magistrate Judge Go, whose order was affirmed on appeal by District Judge Dearie. While the overarching issue is under what circumstances the details of an expert analysis will not be compelled during discovery, this case brings to light several additional sub-issues.  The defendants argued that the information, produced by a non-testifying expert, was not protectable work product and that any protection that may have attached was forfeited through inadvertent disclosure on two occasions. Tackling the latter issue, the plaintiffs’ first inadvertent disclosure occurred during the course of a 137-page document production.  More notably, the second inadvertent disclosure occurred during the course of the plaintiffs’ documents submission complying with the defendant’s request for metadata.  The plaintiffs inadvertently reproduced the unredacted version of a particular spreadsheet that contained experts’ names and calculations.  As this was the second of the two inadvertent disclosures, the court expressly acknowledged that the “plaintiffs should have been on notice with the first inadvertent disclosure that the spreadsheets contained protected information and should have carefully reviewed the spreadsheets before providing them to their vendor and producing them to defendant.”  But, under the stipulated protective order signed by both parties, a claw back provision recited that the inadvertent disclosure of any material that qualifies as protected information does not waive the privilege on privileged information.  The law with respect to such a protective order invokes the waiver of privilege only if production was completely reckless, and the court did not find completely reckless behavior in this instance.  Rather, the court simply found the plaintiffs were careless in twice disclosing a few rows and columns on two pages of a 34-page spreadsheet. Addressing the issue of the fact that the r-squared analysis was performed at the pre-filing stage by a non-testifying expert, both Magistrate Judge Go and District Judge Dearie paid particularly close attention to the underlying fairness at stake and addressed the issue of whether it was fair for plaintiffs to submit an expert analysis in their complaint—that survived a motion to dismiss—and then disclaim the analysis in the future.  Because the plaintiffs disclaimed future reliance on the analysis conducted by their consulting expert, Federal Rule of Civil Procedure 26(b)(4)(D) is invoked for its protection of the disclosure of information from non-testifying, consulting experts.  Under this rule, discovery is only permitted upon a showing that it is impracticable for the party to obtain facts or opinions on the same subject by other means.  Since extraordinary circumstances were not found, details relating to the analysis were not compelled. Although it may seem unfair, the r-squared analysis was not the reason the complaint survived the motion to dismiss; the court was required to proceed on the assumption that factual allegations are true even if their truth seems doubtful, and consideration of the attacks on the consulting expert’s analysis would not factor into assessing the complaint’s plausibility. Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

What Should Law Enforcement Agents Do If A Suspect’s E-Mails Are Stored Abroad?

Tech savvy criminals in the United States beware!  Your e-mails stored on servers abroad are discoverable by law enforcement agents in the United States.  A technologically clever criminal in the United States may have set up his e-mail account with a different country code to hide e-mails abroad from law enforcement agents in the United States during an investigation.  The United States District Court of the Southern District of New York did not reward the particularly tech savvy criminals when it decided In re Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation (“In re Warrant to Search”) on April 25, 2014. In In re Warrant to Search, law enforcement agents in the United States obtained a warrant authorizing the search and seizure of information associated with a specific web-based e-mail account that is stored at the premises of Microsoft Corporation.  In response, Microsoft’s Global Criminal Compliance team complied with the warrant to the extent of producing the information stored on servers in the United States.  However, the servers in the United States only contained non-content information because the target e-mail account was hosted in Dublin, Ireland, where a server stored all the content information.  Thus, Microsoft filed a motion seeking to quash the warrant to the extent that it directs the production of information stored abroad. Microsoft’s obligation to disclose customer information and records to the Government is governed by the Stored Communications Act (the “SCA”).  However, Microsoft argued that Federal courts are without authority to issue warrants for the search and seizure of property outside the territorial limits of the United States.  The Government contended that the SCA does not implicate principles of extraterritoriality, and as such, Microsoft’s motion must be dismissed. The Court dismissed Microsoft’s motion and required it to produce the digital information from the server in Dublin.  The Court found that the SCA was ambiguous regarding principles of extraterritoriality, but the structure of the statute, the legislative history, and the practical consequences undermined Microsoft’s argument.  An SCA Warrant allows for law enforcement agents to obtain digital information even when it is stored on servers abroad. Criminal defendants, law enforcement agents, and internet service providers can all learn a lesson from this case.  Law enforcement agents in the United States should be aware that digital information stored abroad is not necessarily beyond their grasps.  Internet service providers should provide the digital information from all its servers, irrespective of the server’s location, to ensure full compliance with SCA Warrants.  And finally, for all the tech savvy criminals out there, your e-mails will be discovered by law enforcement in the United States even if stored on a server in a different country.  If you are concerned about hiding your e-mails from law enforcement agents in the United States, I suggest that in addition to storing your e-mails on a server abroad, you should also not use an American internet service provider, such as Microsoft. Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University.  He will receive his J.D. from Seton Hall University School of Law in 2015.  After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey.

When Can Spoliation Result in an Adverse Inference Jury Instruction? Where there was an Obligation to Preserve, a Culpable State of Mind, and Destruction of Relevant Evidence.

Employers should take note: erasing and taping over messages that relate to a fired employee is never a good idea. Employers who engage in this type of practice will never escape the wrath of a judge when the fired employee inevitably brings a wrongful termination. Eventually, such action catches up with the defending company and they will have to pay a steep price. Take, for instance, the case Novick v. AXA Network, LLC. The plaintiff was asking the judge for sanctions to be imposed on the defendants because he claimed that the defendants spoliated audio recordings and emails from an eight-week stretch, which ran from late August until early November 2006. The defendants admitted that recordings from this time period were likely erased and taped over. The problem here is that this stretch of time covers the time directly before and directly after Novick’s termination. It should seem obvious to anyone that a company’s failing to preserve any recordings regarding a former employee’s termination is a terrible idea and will likely hurt one’s case in court. It should instead be common sense that when an employee is terminated, and certainly when that termination is contentious, a lawsuit is foreseeable.  Thus, the employer should take care to preserve anything that might come into play at trial. Novick asked the judge to sanction the defendants for the spoliation of emails. The defendants could not produce any emails between the two employees at AXA Network, who took over Novick’s accounts, and Novick’s former clients. If these employees were involved with Novick’s clients after Novick was fired, it is only logical that there would have been emails taking place between these employees and those clients! Nevertheless, the defendants could not produce a single e-mail. Sanctions can be imposed on a party for spoliation in violation of a court order under Rule 37(b) of the Federal Rules of Civil Procedure or, where there has been no violation of a court order, a judge can impose sanctions for spoliation under the court’s “inherent power to control litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (emphasis added). For the court to exercise its inherent power, there must have been a showing of bad faith. United States v. Int’l Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991). The Novick court in this case found that the defendants did spoliate the audio recordings because they were notified in October 2006 to preserve the recordings for future litigation and to produce those recordings  to the plaintiff. In addition, the defendants provided no reason for why or how these recordings were missing. Unsurprisingly, the court suggested that such behavior indicates that the company acted deliberately and therefore possessed a culpable state of mind. The defendants acted in bad faith. The court did not find that the defendants spoliated the email messages, but it still believes they acted in bad faith with respect to the production of the emails because the company failed to search one of their email archives for months due to what was claimed as “human error.” This was clearly a delay tactic, further warranting sanctions. The court invoked its inherent power to control litigation because the defendants acted in bad faith, employed delay tactics, caused substantial costs to be incurred by the plaintiff, and wasted the court’s time. The court imposed an adverse inference jury instruction. Adverse inference instructions can be imposed against a party who had an obligation to preserve evidence at the time it was destroyed, who destroyed the evidence with a culpable state of mind, and who destroyed evidence that was relevant to the opposing party’s claim or defense. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). The clear takeaway from this case is that it is better to be safe than sorry; if it is reasonable that a lawsuit may be brought against you, take all measures to preserve any evidence that might have anything to do with that future case. Preserving the evidence will not hurt, but failing to do so will. Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of criminal law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When are sanctions issued based on evidence destroyed during the ordinary business protocols?

Companies issue laptops to their employees to be used for business purposes both in the office and at home. A company’s distributing laptops is joined with the company’s responsibility to preserve the electronically stored information (ESI) when litigation is reasonably anticipated. Every company has its own “ordinary business protocol” to be used in relation to these laptops when a situation requires it, but sometimes these protocols lead to bigger issues. In Hawley v. Mphasis Corp., the United States District Court for the Southern District of New York granted an adverse inference instruction regarding a supervisor’s laptop, but not for the employee laptop. In Hawley, an employee of the defendant company brought an employment discrimination claim and moved for sanctions against the defendant for alleged discovery violations; those of which, in particular, were violations regarding spoliation of information on two company laptops.  The employee alleged that the company deleted all information from his work laptop, as well as his supervisor’s information, and did not produce records vital to the defendant’s case. The company countered, arguing that clearing the hard drive of a former employee’s laptop was the business protocol. In evaluating the request for an adverse inference sanction, the district court explained that the plaintiff must demonstrate: “(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that 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.” Hawley v. Mphasis Corp., No. 12 Civ. 592 (DAB) (JLC), 2014 WL 3610946, at *7 (S.D.N.Y. July 22, 2014) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)). As to the supervisor’s computer, the court held for an adverse inference sanction because the company had a duty to preserve the supervisor’s data from the time of the EEOC filing.  Furthermore, the company negligently destroyed the records on the laptop , which were found to be highly relevant to the employee’s case.  In regards to the employee’s computer, the court found both a duty and the requisite culpability; however, the court did not believe that the employee sufficiently proved how relevant the information was to his case. The lesson to extract from this case is that the courts do not care if your company’s protocol requires one procedure to be followed (i.e., wiping a hard drive) when it comes to the spoliation of relevant evidence.  The company’s wiping the hard drives is trumped by a duty to preserve data when a lawsuit is reasonably anticipated. The ruling in Hawley demonstrates that, in an employment case, the receipt of an EEOC charge triggers the obligation to preserve all data, but it could arise earlier depending on the circumstances. Be aware of when a lawsuit is reasonably anticipated and do not hesitate to act and preserve. Such awareness will help your company in the long run. With that, be on top of the individuals responsible for preserving company data and ensure those individuals are complying with company policy. One does not want to need a hard drive that has no data saved on it. Evidence must be preserved until litigation is resolved or no longer reasonably anticipated, and as courts become stricter with this rule of law, so should every company.  A look at the circumstances and a possible deviation from ordinary protocols may be needed. For more information on the case used as precedent, Residential Funding Corp. v. DeGeorge Fin. Corp., click here: http://caselaw.findlaw.com/us-2nd-circuit/1003010.html. Amanda is a third year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Seeking Discovery Requires Specificity

When lawsuits arise, litigants are usually hesitant to cooperate with their adversaries. However, this way of thinking usually does nothing more than delay the inevitable. More often than not, adversaries choose to “fight to the death” rather than work together and speed up the lengthy litigation process. Margel v. E.G.L. Gem Lab Ltd. involves a suit between Guy Margel, the plaintiff, and E.G.L Gem Labs, a gem grading business that Margel initially started and later sold. The defendants claim that the plaintiffs have failed to provide certain pieces of discovery after the plaintiffs retained new counsel, produced 800 pages of documents, and represented that all responsive, non-privileged documents had been produced. The defendants, however, offered no proof to substantiate their claims. The court mentions that suspicions alone will not substantiate the imposition of sanctions. Under ordinary circumstances, a party’s good faith averment that the items sought simply do not exist, or are not in his possession, custody or control, should resolve the issue of failure of production.  Zervos v. S.S. Sam Houston, 79 F.R.D. 593, 595 (S.D.N.Y.1978). Based on these circumstances, the court found no basis for imposing sanctions on the plaintiffs. The plaintiffs also bring a motion against the defendants seeking the production of documents relating to the grading certificates or reports issued by EGL–USA for the period from January 1, 2000, to present [the date of litigation]. The defendants contend that some of these documents predate the claim in questions and are therefore non-discoverable. The court noted that it is not appropriate for a party to use the discovery provisions to determine whether or not it has a claim. “A party must already have a claim for which it seeks additional discovery, as discovery is not meant to allow a party to find out if it has a claim.” (quotations and citations omitted). This being the case, the court held that there is no reason to provide records for the period that pre-dates the litigation. However, the plaintiffs also sought to compel the production of electronic information relating to the claim, which the defendants contend fell outside the scope of the term “documents.” The court noted that simply because an item is stored electronically does not mean it is not considered a “document.” Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 (S.D.N.Y.2003)  (“[E]lectronic documents are no less subject to disclosure than paper records.”).  Therefore, the court held that the defendants were to produce the electronically stored information within ten days. In summation, Margel demonstrates the fact that it is usually easier to work together than constantly compete. Additionally, when a party puts forth a good faith effort to provide the entire discovery requested, and that party represents that the information provided is the full extent of discovery, absent evidence to the contrary additional documents will not be compelled. Finally, it is important to note that electronic information is considered to be a fully discoverable document not subject to any additional protection simply because of the electronic format.

Will A Tangled Web of Preservation Failures Lead to Sanctions?

Preserving electronic data can be a challenge for companies with multiple data centers.  However, what we have here is a failure to communicate.  The case at issue is an ERISA class action against UnumProvident. On November 26, plaintiffs' counsel wrote to request a conference to present their request for a preservation. The court then outlined principles that would serve as the basis for the parties' draft of a proposed order. The court observed, without contradiction from UnumProvident, that UnumProvident already had a duty to preserve any tapes containing emails as of November 4, the date litigation commenced. The order required all back-up tapes or other back-up hard drives, disks or other hardware containing material back-up by the defendants regarding Y2K, regardless of the date or dates of the internal or external e-mails, computer information, or electronic media contained thereon to be preserved.  Specifically the plaintiffs requested all internal and external e-mails, generated, created, or dated October 14, 15, and 16 of 2002, and November 18, 19, and 20 of 2002.  If the defendants alleged these e-mails were no longer in existence due to routine destruction or otherwise, the defendants had to provide an affidavit explaining circumstances of the unavailability. UnumProvident’s Enterprise Security Architect decided instead of preserved the data to implement a special “snapshot” back-up which would back-up those emails that were on the system as of the day or days the snapshot was taken.  UnumProvident could also have directed IBM, their data vendor, to copy email back-up tapes from existing unexpired tapes to other back-up tapes that would contain no expiration date. Similarly, it could have copied the data onto a hard drive or into other computer media.  Instead, this snapshot inadvertently caused all of the data on the back-up tapes to be overwritten. The court found that no enterprise officers of UnumProvident had sufficient expertise to discuss the preservation project in a meaningful way. Neither of them took the steps that they needed to take to get sufficiently informed advice on the issues involved. Similarly, there was insufficient supervision of the Enterprise Software Architect's efforts.  The officer had also never ordered IBM to preserve emails regarding the six dates. Additionally, the law department of UnumProvident never instructed its officers to confirm that email for the six days had been preserved by IBM. As this issue developed relatively early in discovery, the court found it difficult to determine the extent to which the plaintiffs have suffered any prejudice from the failure to capture all of the UnumProvident emails for the six days.  Throughout the whole opinion, the court was very skeptical of the testimony of UnumProvident’s officers.  The court determined most of UnumProvident’s actions were inadequate.  However, it also determined the accelerated expiration problem that occurred because of the creation of the snapshot was inadvertent and unintended.  Therefore, the court did not award any sanctions.  It can still be assumed the court would be less trusting of UnumProvident after this debacle and less likely to give them the benefit of the doubt.

If You’re Looking For Approval of Computer-Assisted Review, You Found the Right Case

In a case dealing with gender discrimination between female employees and a large advertising conglomerate, the plaintiffs filed claims against the defendants under Title VII of the Family and Medical Leave Act, the Equal Pay Act, the Fair Labor Standards Act, and similar New York labor laws.  After the plaintiffs objectioned to the defendants’ use of computer-assisted review and search method, United States Magistrate Judge Andrew J. Peck opined that computer-assisted review is an acceptable search method for relevant ESI in appropriate cases. Throughout his opinion, Judge Peck referred to articles and public statements he had made prior to the case on his beliefs of the value of computer-assisted review. Judge Peck explains his interactions with the two parties involved started at the first discovery conference, which took place on December 11, 2011.  While, both parties had discussed ESI protocol, the plaintiffs were reluctant to accept the defendant’s utilization of predictive coding to gather the relevant documents among the three million electronic documents from the agreed-upon custodians.  In a later discovery conference, the court refuted the defendants’ proposal to cutoff production at the most relevant 40,000 documents due to expense, explaining that proportionality must consider cost and results in gathering the most likely highly responsive documents.  The court went on to agree with the defendants on other factors concerning document production and custodians due to the fact that the plaintiffs could not give meaningful reasons for the inclusion of other custodians and emails or assert a likelihood that the information could be found through other reasonable discovery procedures. On February 8, 2012, after going through the main issues that were holding up the discovery process, Judge Peck acknowledged that the defendants agreed to provide the plaintiffs with all seed documents and protocol in determining relevant ESI throughout the computer-assisted review process.  With that knowledge, Judge Peck accepted the proposal that defendants submitted to the plaintiffs and the court for producing relevant ESI, and acknowledged that computer-assisted review was an efficient and officially judicially approved method for ESI protocol and production when given the appropriate case.  On February 8, 2012, the plaintiffs filed an objection to the court’s ruling.

Class Action Lawsuits—Who Pays the Price in Compiling the List?

How many readers are familiar with a class action suit? Do class actions suits seem to be never ending and broad? What is the scope of such suits? In Oppenheimer Fund v. Sanders, the United States Supreme Court addressed the issue of a class action lawsuit in regards to compiling the names and addresses of the members of the class. A class action was brought against Oppenheimer Fund, an open-end diversified investment fund that sells shares to the public at their net asset value plus a sales charge. The respondents bought shares at various times and filed complaints that the shares in the Fund were artificially inflated as they had been overvalued on the Fund’s books. As a result a class action suit was filed. The respondents sought to require the Fund to help compile a list of the names and addresses of the members of the plaintiff class from records kept by using a transfer agent so that individual notices could be sent. The respondents essentially were seeking information about 121,000 people. Of this large number, 103,000 individuals still had shares in the Fund, while 18,000 others had sold their shares. Gathering this information would be time-consuming, as the transfer agent would have to manually sort through paper files. The Second Circuit held that the discovery rules authorized the district court to order the petitioners to assist the respondents in compiling this list of members of the respondent class and to bear the expenses of compilation. The issue was brought before the Supreme Court, which reversed the lower court’s holding, finding that it was an abuse of discretion of the court to require petitioners to bear the expenses of compilation. Here, the respondents could easily hire the transfer agent as a third party to compile the list by paying the agent the same amount that petitioners would have to pay. The Court reasoned that this information must be obtained to comply with the obligation of the respondents’ to prove notice to their class. Additionally, no special circumstances were presented to warrant requiring petitioners to bear the expense. The Court noted that a mere allegation of wrongdoing is an insufficient reason to require the Fund to undertake the financial burdens and risks in compiling the list. Overall, the lesson to be learned here is that in class action lawsuits, where the information sought can be obtained at the same cost to either party, it is the respondents who will bear these expenses to identify members of their own class. Jennifer Whritenour received her B.S. in Political Science and History in 2011 from the University of Scranton. In 2014, Ms. Whritenour graduated from Seton Hall University School of Law.

DESI VI Workshop on Using Machine Learning and Other Advanced Techniques to Address Legal Problems in E-Discovery and Information Governance

From June 8–12, 2015, the International Association for Artificial Intelligence and Law (IAAIL) will be holdings its 15th International Conference on Artificial Intelligence & Law (ICAIL).  The conference will be held at the University of San Diego School of Law in San Diego, California. During that conference, on June 8, esteemed eDiscovery attorney Jason R. Baron, from Drinker Biddle & Reath LLP, will be hosting the DESI VI Workshop.  The Workshop aims to bring together researchers and practitioners to explore innovation and the development of best practices for application of search, classification, language processing, data management, visualization, and related techniques to institutional and organizational records in e-discovery, information governance, public records access, and other legal settings. Questions addressed include: What combinations of machine learning and other techniques can best categorize information in accordance with existing records management policies? Do effective methods exist for performing sentiment analysis and personal information identification in a legally useful way in e-mail and other records of interpersonal communication? How well can we estimate the end-to-end costs of workflows that combine artificial intelligence and human coding to accomplish legal tasks on a broad range of content types? Can proactive insider threat detection leverage information already being collected for records management purposes, and what would be the ethical and legal fallout of such approaches? Are approaches available to reduce the perceived conflicts between privilege and transparency in labeling data for Technology-Assisted Review (TAR) in e-discovery and public records access applications? What technical, procedural, and legal issues arise from recent proposals to shift the focus of e-discovery from relevance to materiality? Where do recent legal cases point to the need for new research to better inform the decision of courts and the practices of parties? What lessons can we draw from recent shared-task evaluations such as TREC and EDI, and how can future shared-task evaluations best be structured? How can current techniques for issue coding be applied to compliance tasks (e.g., in regulatory, enforcement, and investigations settings), and what capability gaps exist that call for new research? What implications do emerging technologies such as deep learning and fine-grained access to behavioral traces have for e-discovery, business intelligence, and records and information management purposes? Baron invites those interested in electronic discovery to submit a refereed or unrefereed paper to the Workshop; however, paper submission is not required to participate.  More information about the DESI VI Workshop can be found here.

What Conduct is Necessary for the Court to Impose a Dispositive Sanction?

In cases involving a large amount of e-discovery, it is common for a litigant to be accused of misplacing or destroying relevant evidence.  When evidence is lost, the court must evaluate whether sanctions are appropriate, and if so, what type of sanctions should be imposed.  In making this determination, the court will consider the following factors: (1) the degree of fault of the spoliation party, (2) the degree of prejudice to the adverse party, and (3) whether there is a less severe punishment that would avoid substantial unfairness to the adverse party while still serving to deter similar spoliation by others in the future. In Micron Technology, Inc. v. Rambus Inc., the parties sued and countersued for claims relating to patent infringement.  During discovery, the court determined that Rambus destroyed a significant amount of documents relevant to the lawsuit.  Specifically, Rambus engaged in three “shred days” (also known within the company as a “shredding parties”) where evidence was destroyed pursuant to the company’s document retention policy.  Much of this evidence, however, was lost after a litigation hold was in place. In order to determine if sanctions were appropriate, the court first analyzed whether there was any bad faith on the part of Rambus.  The court explained that bad faith requires a showing that the “spoliating party intended to impair the ability of the potential defendant to defend itself.”  The court found that during the shred days, employees were instructed to be selective about which documents they destroyed.  Employees were told to “expunge documents questioning the patentability of Rambus inventions,” while at the same time to “look for things to keep that would help establish that Rambus had intellectual property.”  Further, Rambus employees testified that they were destroying documents in preparation for the “upcoming battle” of litigation.  Ultimately, the court determined that Rambus destroyed documents in bad faith. Next, the court examined whether Rambus’s bad faith shredding parties caused prejudice to its adversary.  Prejudice “requires a showing that the spoliation materially affects the substantial rights of the adverse party and is prejudicial to the presentation of its case.”  The court explained that when bad faith exists, the spoliating party bears the “heavy burden” of showing a lack of prejudice.  The court explained that Rambus failed to meet this heavy burden and enumerated multiple claims and defenses that were prejudiced by Rambus’s bad faith destruction of evidence. Finally, the court considered whether a dispositive sanction is an appropriate sanction under these circumstances. The court explained that when there is “clear and convincing evidence that the spoliation was done in bad faith and was prejudicial to the opposing party, then dismissal may be an appropriate sanction” as long as a lesser sanction would serve as an adequate deterrent. The court considered whether an award of attorney’s fees or other monetary sanctions would be appropriate, but ultimately rejected these “relatively mild sanctions [that were] disproportionate to the degree of fault and prejudice at hand.”  Next, the court analyzed whether an adverse jury instruction would be a proper sanction.  The court rejected this sanction as being inadequate punishment and deterrence in light of Rambus’s extensive bad faith spoliation.  Lastly, the court considered whether an evidentiary sanction would be an adequate remedy.  This sanction would foreclose Rambus from offering any evidence related to the subject matter of the destroyed documents.  Once again, the court found this sanction to be unsatisfactory due to Rambus’s extensive destruction of evidence.   Therefore, after considering the extraordinary circumstances of this case, along with the lesser sanctions available, the court found that the only appropriate sanction was to hold Rambus’s patent-in-suit claims unenforceable against its adversary. In sum, the court held that a dispositive sanction is appropriate when a party destroys evidence in bad faith, the destruction is prejudicial to the adversary, and no lesser sanction would be appropriate to punish and deter similar action.  It should be noted that dispositive sanctions are rare, but nonetheless are warranted when “destruction of evidence is of the worst type: intentional, widespread, advantage-seeking, and concealed.” E-DiscoParty, a Seton Hall University School of Law graduate (class of 2014), served on the executive board of the Seton Hall Law Review and is a member of the Interscholastic Moot Court Board.  E-DiscoParty currently clerks for a Justice on the Supreme Court of New Jersey.