e-Lessons Learned

Defendant Maxxam was accused of willfully destroying evidence that the government claimed would have aided its case. The government alleged that Maxxam, a lumber company, fraudulently prepared a report that overstated the minimum amount of trees it could safely cut down while remaining economically viable. The government further alleged that VESTRA, a consultant retained by Maxxam’s law firm, willful destroyed key data used in this report.

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Given our recent treatment of Zubulake as the “ebook of Genesis” on the creation of ediscovery, it is important to note that sanctions for ediscovery mishaps existed even before the term was coined.

This case arose out of a class action lawsuit brought by Prudential policy holders alleging that Prudential engaged in a scheme to sell life insurance through deceptive practices. On September 15, 1995, the court entered its first Order requiring that all parties preserve all documents and other records containing information potentially relevant to the litigation. This opinion relates to the multiple instances of document destruction by Prudential employees and agents after the issuance of this Order.

In 1994, pursuant to a regulatory directive issued to most life insurance companies, Prudential undertook a sweep of its sales materials to remove any unauthorized materials. To accomplish this, the company issued a manual that outlined the procedures to be followed in order to identify and remove all unauthorized sales materials. The materials specifically called for the destruction of all materials no longer authorized by Prudential. Continue reading »

This is the fifth chapter in our Zubulake series.

Zubulake’s suit against UBS was your typical, run on the mill, employment discrimination case. However, along the way it has now become one of the seminal e-discovery cases.

Zubulake V is concerned with the plaintiff’s request for electronically stored information (“ESI”), in particular, e-mails. This motion was made after two years of attempting to get the information that she requested. The court was faced with the issue of whether to issue sanctions on UBS for its failure and delay in producing relevant evidence and if so whether UBS acted negligently, recklessly, or willfully.

The UBS’s lawyers did make some efforts to preserve evidence. They told employees to not delete relevant information. They instructed IT personnel to preserve back up tapes. And they met with key individuals and explained that the need to preserve all relevant evidence. However, it eventually came to light that these efforts were not enough. Continue reading »

For those of you that have been living under an e-discovery rock, and therefore have never heard of Zubulake, please continue reading.

The Zubulake decisions in 2003 through 2004 shook the world of e-discovery. Litigators, law professors, and all kinds of pundits, tuned in and took notice: U.S. District Judge Shira Scheindlin, one of the most brilliant trial judges on the bench today, and unfortunately for UBS, an e-discovery expert threw the gavel at UBS on this one. Zubulake walked away from this case with close to $30 million and UBS was left with a deep hole and lots of sanctions.

But we are skipping ahead in our saga. The case started as a common gender discrimination suit brought by Zubulake against her former employer, UBS. Continue reading »

From the second we stepped foot in law school we learned that the attorney-client privilege was sacrosanct. While by no means absolute, we knew it was pretty hard to gain access to the communications between an attorney and client. Waiver just became a little more likely in New Jersey. A state trial court decision underscores the reality that email communication is too often treated informally and we as attorneys can no longer assume a client’s “personal” email account is truly personal. For while the account itself may be, the means by which the message was sent, may not.

Recently, a New Jersey trial court had occasion to determine whether an employee’s use of her employer’s computer and server to communicate with her lawyer waived the attorney-client privilege. In Stengart v. Loving Care Agency, Inc., docket no. BER-L-858-08, the court held that it did; and the ruling highlights for employers the importance of having a detailed employee handbook and technology system protocol in place; and for lawyers the importance of making sure that communications from clients come by way of truly personal means.

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Prior to December 1, 2006, the Federal Rules of Civil Procedure did not include any reference to electronic documents or electronically stored data. However, when Playboy discovered that one of its Playmates was deleting relevant emails relating to a pending litigation, it sought to use the discovery procedures to forensically analyze the Playmate’s hard drive. Always an innovator, and on the cutting edge of electronic media exploration, Playboy lead the charge that ultimately resulted in countless electronic discovery cases and the 2006 amendments to the Federal Rules of Civil Procedure.

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With some help from Leo Rosten, a magistrate judge orders defendant to shoulder the burden and expense of correcting its own malfeasance.

Background

The plaintiffs in this case were disabled individuals living in Washington D.C. and the Equal Rights Center (collectively “Plaintiffs”) who sued the Washington Metropolitan Area Transit Authority (“WMATA”) for alleged violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq. Plaintiffs’ main complaint was that WMATA’s public transportation services for the disabled were materially inferior to those services available to the nondisabled. Plaintiffs asked for money damages and injunctive relief.

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This e-discovery case arose from Google’s search for a declaratory judgment holding that selling trademarks as a keyword is not trademark infringement. The selective preservation of documents and the questionable actions by a resigned CEO lead to this action by Google.

In this motion, Google asserted that American Blind & Window Factory, Inc. (“American Blind”) did not take sufficient measures to preserve, collect, and produce evidence. To support its claim, Google showed that no deposed employee or ex-employee of American Blind could recall being notified to preserve documents, e-mails, any other information that would be relevant in the ongoing litigation and some of these employees had deleted documents. Google also showed that e-mail was regularly used during the course of American Blind’s business and that American Blind was unable to produce all relevant e-mail to this litigation.

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At issue in this case was a corporation’s failure to comply with its duty to issue a litigation hold in the face of pending litigation. However, the corporation was ultimately not sanctioned for its failure to comply with its obligation because the plaintiff could not establish that the failure resulted in the spoliation of relevant evidence.

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An employee plans on leaving his current employer for its competitor. Before he leaves, he decides to send some emails to himself and his soon-to-be employer that may have contained proprietary information and trade secrets. The former employer finds out, and sues for misappropriation of trade secrets. And what does the former employee do after finding out about the lawsuit? He destroys some of the evidence. Didn’t your mom teach you that you destroying things is bad? Guess not.

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