Authored By: Michael Tucker Jr.

Citation: ANZ Advanced Technologies, LLC v. Bush Hog, LLC, 2010 WL 3699917 (S.D. Ala. 2010)

Employee/Employer Implicated: Owner/Executive; Employee

e-Lesson Learned: It is important not to misrepresent the dates that documents were actually created because retyped “copies” are not actually copies. Once you go down this path, all your hard drives and storage devices can be physically analyzed and forensic images are just not good enough.

Tweet This: Forensic img of storage device insufficient when what you previously produced was a lie. Get Physical (Hard Drives)

On May 4, 2010, ANZ Advanced Technologies (plaintiff) was ordered to produce all hard drives and storage devices used by two of the company’s officers (Irfan Sheriff and Rakesh Vashee) for forensic analysis and ESI production. ANZ moved to modify the order seeking to substitute forensic images of the devices for the devices themselves. The court refused to allow the use of forensic images and mandated that ANZ turn over the physical storage devices   ANZ was forced to submit its devices for forensic analysis because of misrepresentations made about creation dates of various documents. The court found that ANZ’s conduct cast serious doubt on the authenticity of any document it produced from the hard drives of any computers or other storage devices in the possession of Mr. Sheriff or Mr. Vashee.

Authored By: Michael Paragano

Citation: Cache La Poudre Feeds LLC v. Land O’Lakes, Inc., F.244 R.D. 614 (D. Colo. 2007)

Employee/Employer Implicated: Outside Counsel, Misc. Employee

e-Lesson Learned: The duty to preserve evidence is not necessarily dependent on the tender of a preservation letter, but the duty to preserve must be predicated on something more than just mere discontent.

Tweet This: Be Clear That You Are Suing, and The Other Side Will Have to Preserve!

The duty to preserve evidence is normally triggered by the filing of a lawsuit. However, the duty may arise even earlier when there is a mere “possibility” of a lawsuit. Problems arise because the legal system has grown more and more every day and lawsuits are always a “possibility”. Thus, courts have found that when there is an unequivocal notice of litigation, the party absolutely has a duty to preserve but there must be more than just a mere “possibility” of a lawsuit for the duty to be triggered. Courts will determine when that duty arises based on the facts of each individual case.

Authored By: Shaun Salmon

Citation: Rimkus Consulting Group, Inc. v. Cammarata, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010)

Employee/Employer Implicated: Employees

e-Lesson Learned: Even if the court doesn’t instruct the jury on intentional destruction of evidence, the court will leave it up to the jury to decide if the destruction was willful, so don’t implement policies that may delete potentially relevant documents.

Tweet This: Rimkus: Let the people decide!

In 2006, a group of employees at Rimkus Consulting left the company and, in an attempt to circumvent their non-compete agreements, filed suit seeking a declaratory judgment that the forum selection, choice-of-law, non-competition, and non-solicitation provisions in the agreements they signed with Rimkus were unenforceable. In a countersuit, Rimkus Consulting stated that the former employees violated the non-competes in question, stole “trade secrets and proprietary information,” and also allegedly violated non-solicitation agreements by joining forces with other employees and forming a competitive company. The illegal acts alleged in Rimkus were specific to intentional destruction of ESI, unlike in previous cases (think Pension Committee), and included: deleting emails directly relevant to impending litigation, failing to undertake steps to preserve ESI fol­lowing the commencement of litigation, providing inconsistent testimony regarding preservation and spoliation of ESI, giving away or destroying laptops that con­tained ESI, conducting only a ‘‘superficial’’ search, even after numerous discovery requests and court orders, making no effort to identify alternate sources of ESI, producing ESI years after applicable requests, and producing a key email in a format that left no indication that six documents had been at­tached and were not produced.

Authored By: Danielle Y. Alvarez

Citation: Nat’l Day Laborer Org. Network v. U.S. Immigration and Customs Enforcement Agency, 10 Civ. 3488, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011)

Employee/Employer Implicated: Employees and Government Officials

e-Lesson Learned: Metadata is an integral part of an electronic record, so it should not be stripped from PDFs and other productions of electronic public records under FOIA.

Tweet This: Agencies: SDNY rules that metadata is part of an electronic public record – are you properly handling FOIA requests?

Metadata includes those properties related to electronic files in their original format, such as the original identifier/file name, custodian, source/file directory, modified date and time, creation date and time, time offset value, etc. In a precedent-setting opinion in the Southern District of New York, Judge Scheindlin (thinking Judge Judy? Not that Judge Scheindlin!) held that certain metadata is part of an electronic public record and subject to disclosure under discovery rules as well as the Freedom of Information Act (“FOIA”).

Authored By: Christopher Dize

Citation: Ahroner v. Israel Discount Bank of New York, etc., et al., 2010 N.Y. App. Div. LEXIS 9087 (Dec. 7, 2010).

Employee/Employer Implicated: Banks, Management, and Attorneys

e-Lesson Learned: Keep your eye on who’s doing what . . . you just might lose your hard drive.

Tweet This: NY Appellate Division Affirms Spoliation Sanctions

In 2002, bank employee Jacob Ahroner was not happy with his employer, Israel Discount Bank of New York. Consequently, in July 2003, he brought suit, alleging hostile work environment and discrimination based on race, age, and national origin. In November 2002, seven months prior to filing the action, however, Ahroner’s attorney wrote to the Bank. The letter informed the Bank that it was “placed on notice that [it] must undertake all efforts to preserve from spoliation all documents and other records relating to our client’s employment, as well as any unlawful conduct of [the Bank] or its employees. As you may be aware, spoliation gives rise to an inference and instruction that the missing documents would have proved the charging party’s case.” The Bank replied that it was aware of its obligations.

Authored By: Danielle Y. Alvarez

Citation: Gates v. Wheeler, A09-2355, 2010 Minn. App. Unpub. LEXIS 1136 (Minn. Ct. App. Div. Nov. 23, 2010)

Employee/Employer Implicated: Co-owner

e-Lesson Learned: Secret email surveillance offends the orderly system of discovery. Don’t do it!

Tweet This: There should be no secret about your company’s email surveillance policy.

As the Appellate Court in Minnesota aptly noted, the rules of civil procedure exist for a reason―they provide us with an orderly system of discovery. Do not attempt to circumvent these rules. Secret email surveillance is never a good idea. This point was made very clear in Gates v. Wheeler. Richard Gates and Matthew Wheeler were co-owners of RSR, which was a limited liability company in Minnesota. Over time, the men’s relationship soured and this led to deadlock in their management of the company. Clearly, the time arrived for their professional relationship to end.

Authored By: S.S.K.

Citation: Estate of Davis v. Spriggs, 2010 WL 4817348 (Delaware County Nov. 19, 2010)

Employee/Employer Implicated: Miscellaneous employees

e-Lesson Learned: Having an “Evidence Eliminator” program which destroys electronic data on a computer upon start-up can justify incidental deletion of evidence when your job involves sensitive information.

Tweet This: OH AppCt: It’s legal to destroy incriminating evidence on your computer! (Sometimes.)

Again with the scandalous sex tapes? Seriously? With all the publicity surrounding leaked sex tapes coupled with the prevalence and ease of digital communication, one cannot honestly believe such a tape will remain a well kept secret. You’ll receive no sympathy on this blog for your escapades, and you’ll receive no sympathy in the Ohio court system, either. In Davis v. Spriggs, Spriggs was suing her former husband (Davis) for posting pictures and video on an adult website after the divorce settlement, signed a few months prior, specifically prohibited such distribution. Spriggs discovered these pictures after logging into a members-only adult website which sent her enough email spam she just had to check it out. Whilst cruising the racy adult website she also discovered pictures of her ex’s new girlfriend.

Authored By: Phil G. Ryan

Citation: Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. Ct. App. Jan. 13, 2011)

Employee/Employer Implicated: Employees

e-Lesson Learned: Communications between an employee and her attorney on a company’s computer, in violation of the company’s computer policy, are discoverable by the employee’s employer because those communications are not communicated in confidence and, are therefore, not privileged.

Tweet This: Inside-Voices Only! If you’re going to talk poorly about your boss do not use the company computer!

They are always watching! Whether you’re emailing your kids, encouraging them to do their homework and chores before watching television, sending a message to this week’s fantasy football rival, rejecting his offer to trade his kicker for your star running back, or reaching out to your college roommates, seeking advice on how to pick up the girl at the local coffee shop, make no mistake, they are watching! When you agree to your company’s computer policy, the one that says you’ll use the employer issued device for work purposes only, you do more than just promise you will spend your time focused on your job. You give up your privacy. Those emails to your kid, the message in your fantasy league, and the note to your friends, are all fair game for your boss to read.

Authored By: William J. Brennan

Citation: GATX Corp v. Appalachian Fuels, LLC, 2010 U.S. Dist. LEXIS 129706 (E.D. Ky. Dec. 7,2010)

Employee/Employer Implicated: Counsel for the Defendant

e-Lesson Learned: Accidental disclosure of privileged (attorney client) e-mail requires strict adherence to Rule 502 (b), failure to comply with (Rule 502 (b) will likely result in a finding that any waiver of privilege was intentional. An attempt to introduce accidentally disclosed communication risks access to all such communication.

Tweet This: Carelessness in releasing attorney client e-mail costs more time and effort than careful review of discovery responses.

A Kentucky law firm narrowly escaped a waiver of privilege via adherence to Rule 502 (b). After carelessly turning over privileged e-mails; Wood, Wood and Young (of Maysville Kentucky) learned the hard way that turning over reams of e-mail absent careful redaction of privileged communications can have serious consequences. Fortunately, the firm adhered to Rule 502 (b) after opposing counsel put them on notice that privileged communication had been disclosed. In GATX Corp v. Appalachian Fuels, LLC, 2010 U.S. Dist. LEXIS 129706 (E.D. Ky. Dec. 7,2010) the employees merely communicated with counsel via e-mail on a range of topics, some privileged and in the ordinary course of business. Unlike phone calls and snail mail, those communications were easily retrievable, voluminous in nature, and consequently less readily subject to redaction.

Authored By: Danielle Y. Alvarez

Citation: In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010)

Employee/Employer Implicated: Chief Executive Officer

e-Lesson Learned: Even if you produce what seems like a lot of documents, failing to preserve potential evidence could still give your adversary the benefit of an adverse inference instruction which may go a long way toward proving their case.

Tweet This: Producing 2 million docs still not enough when failing to preserve other evidence --> http://ellblog.com/?p=2259

Preserve all potential evidence for a lawsuit. This is discovery 101, isn’t it? Apparently not. The CEO of Oracle Corporation deleted email files and audiotapes, and this blunder could have cost him and his company a substantial lawsuit. Oracle is the second largest software producer in the world, and Larry Ellison is Oracle’s Chief Executive Officer. In 2001, Oracle missed its forecasted earnings and its stock price dropped. Several analysts blamed it on the burst of the dot-com bubble. Not surprisingly, purchasers of Oracle common-stock were not satisfied with chalking their losses up to the economy.