e-Lessons Learned

Legal counsel for both parties left the judge frustrated from unprofessional conduct and lazy discovery techniques. Judge Hollows stated, “In the future, the court will decline to hear any discovery matters where the Federal and Local Rules are not strictly followed.” So, when it comes to electronic discovery being strictly followed, keep in mind the following: 1) address the issue EARLY; 2) keep documents in easily accessible format; and 3) supply metadata for pivotal documents.

In the facts, Brinckerhoff worked for the Town of Paradise as a volunteer firefighter. Subsequently, she was appointed to a civil service position and eventually terminated. She brought suit for wrongful discrimination and requested documents in their original format. Included in the documents was an evaluation of plaintiff while she worked for the Town.

In Plaintiff’s motion to compel, she argued that defendant should be required to produce responsive emails in their native format (not hard copy).

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On Friday, April 1, 2011, Rutgers Race & the Law Review will host an all-day symposium at Rutgers School of Law–Newark to mark the sesquicentennial of the first shots of the Civil War and consider how a re-imagining of the use of law and policy to address today’s unfulfilled promises could result in a stronger union. Among the topics of discussion is how technology and social networking/communications has changed democracy, and how technology could keep government accountable in instances such as the events occurring in Libya today.

Confirmed speakers include U.S. Senator Robert Menendez, New Jersey Assembly Speaker Sheila Oliver, and Newark Advisory School Board President Shavar Jeffries.

The symposium is free and open to the public. Register at http://pegasus.rutgers.edu/~racelaw/symposiumrsvpform.html.

What can be more detrimental than giving your adversary access to your electronic files? The answer: not giving your adversary access to your files.

Jacob Ahroner, the plaintiff in Ahroner v. Israel Discount Bank of N.Y., requested and was awarded spoliation sanctions, an adverse inference instruction and reimbursement of fees paid to his expert at trial based upon the destruction of electronic evidence.

To successfully request spoliation sanctions involving the destruction of electronic evidence the party requesting the sanctions be imposed must establish three elements. Continue reading »

Like the student who pleads for impunity because the dog ate his homework, so too will Plaintiff’s plead for impunity when they have misplaced a piece of evidence that is central to their case. In both situations the teacher or judge will likely grant impunity to a degree, as both should realize that accidents happen and people make mistakes. Yet, they also realize that total impunity would be unfair to the students who kept their homework out of harm’s way or to opposing counsel whose defense relies on its examination of alleged evidence. Thus, the teacher and judge are likely to impose consequences. The student will not fail the class for his misfortune, but he might receive a diminished grade for the assignment or the class. Similarly, the litigant will not likely have his case dismissed, but he will face lesser sanctions like an adverse inference or the exclusion of other related evidence. This is precisely what happened in Gallagher v. Crystal Bay Casino, when Gallagher negligently misplaced duplicate CDs of an original recording of a jingle for which he was alleging copyright infringement.

In Gallagher, Gallagher sued Crystal Bay Casino for copyright infringement, misappropriation, and breach of contract for Crystal Bay Casino’s alleged failure to pay for its use of an advertising jingle Gallagher created.

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Facebook and MySpace communications are not confidential! At least according to a Pennsylvania court’s reading of the state’s discovery rules, which it found did not create a so-called “social network site privilege.” And if one reads carefully, Facebook and MySpace’s own policies offer no additional protections.

In McMillen v. Hummingbird Speedway, Inc., the plaintiff (McMillen) sued to recover damages for allegedly disabling injuries suffered during a stock car race in 2007. The complication comes from plaintiff’s subsequent postings and communications to friends on Facebook and MySpace that chronicled a fishing trip and trip to the Daytona 500 races. Engaging in such activities suggested plaintiff was much less disabled than claimed.

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From 2001-2009 Melissa Brinckerhoff was a volunteer firefighter in the town of Paradise, California. Volunteer is a misnomer however, as the town’s firefighters were entitled to benefits and some pay. These volunteers are also protected by various anti-discrimination statutes. Brinckerhoff was fired in 2009. She filed an action claiming that the fire department extended her probationary period and later terminated her because of her gender and claimed disability based on a back injury. Continue reading »

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. Continue reading »

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. Continue reading »

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.

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Just because you have a subpoena does not mean it is enforceable. To enforce a subpoena, the party pursuing it must show its relevance to the case in controversy. Having one semi-suspicious email is not enough to get access to hundreds more from the same account.

Gyrodata Inc. (“Gyrodata”) had pending lawsuits in Texas and California. In both suits the courts had issued protective orders barring parties from sharing confidential information with each other. During discovery in the Texas case an email was produced from an Atlantic Inertial Systems, Inc. (“AIS”) server, a defendant in the California lawsuit, to the principal of one of the Texas defendants. This email had been captured in a “drop box” designed to copy all emails that contained certain key terms relating to the ongoing lawsuits.

After the case in Texas settled, Gyrodata wanted to use that one email to enforce a subpoena for AIS to turnover all of the emails in the drop box so it could pursue sanctions for a potential violation of the protective order. The drop box contained over 1500 emails! Not all of the emails related to the fight with Gyrodata and some contained privileged attorney/client communications.

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