The United States District Court for the Middle District of Pennsylvania recently held that the defendant had a duty to preserve electronically stored information (ESI) more than five years before the plaintiff filed his complaint for age discrimination and retaliation in 2009.  In Culler v. Erick K. Shinseki, Secretary of the United States Veterans Affairs,  Civil Action No. 3:09-0305 (Aug. 26, 2011), citing  Zubalake v. USB Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2004), the court held that the filing of the plaintiff’s first EEOC complaint in 2004, claiming that his position “downgrade” was the result of age discrimination, triggered the defendant's duty to preserve...  

In a trade secret case, the defendant testified that he conducted a “clean-up” of his Dell computer follow-ing the issuance of a TRO and preliminary injunction against him. The defendant’s housekeeping activities on his computer included the deletion of certain financial information and evidence of his subsequent contacts with the plaintiff’s customers in violation of the TRO and preliminary injunction. Armed with this information, the plaintiff in AMG National Trust Bank v. Reis, 2011 WL 3099629 (E.D. Pa. July 22, 2011) moved for contempt and for sanctions based on the defendant’s spoliation of evidence. Commenting on the defendant’s conduct, the AMG court concluded that “the evidence strongly suggests that his purpose in deleting the files was to pre-vent their discovery.”

The court in In Re Scientific-Atlanta, Inc. Securities Litigation, 2011 WL 2771296 (N.D. Ga. July 6, 2011) recently joined the overwhelming majority of courts that have disallowed, under 28 U.S.C. Section 1920, substantial ESI processing and searching costs to a prevailing party. 

With more than 500 million active Facebook users sharing photos and posting information about significant (or insignificant) events on Facebook walls, one of those users may include the Magistrate Judge in Barnes v. CUS Nashville, LLC dba Coyote Ugly Saloon, 2010 WL 2265668 (M.D. Tenn. June 3, 2010). In a novel approach to resolving an electronic discovery dispute, the Court offered to create a Facebook account in order to friend” two witnesses for an in camera review of their Facebook profiles which purportedly contained photographs of them and the plaintiff dancing on top of the defendant’s bar.

Phasing or sequencing electronic discovery is one solution that can appeal to both sides in litigation. While this option has always been availa-ble, recent case law and commentary suggest that its use is likely to increase as parties look for ways to handle the ever growing volume of potentially rele-vant electronic evidence and the costs associated with its preservation, review and production. Re-cently, the court in Tamburo v. Dworkin, 2010 WL 4867346 (Nov. 17, 2010) refused to issue a stay of all electronic discovery requested by the defendants, and instead ordered the parties to conduct electron-ic discovery in phases. Citing recent commentary from the Sedona Conference, the Tamburo court directed the parties to “actively engage in coopera-tive discussions to facilitate a logical discovery flow.”

The epic e-discovery case, Qualcomm v. Broadcom Corp., 2010 WL 1336937 (S.D.Cal. 2010), culminated in April 2010, after a post-trial sanction phase which lasted over a year and involved the production of over 1.6 million documents, a dozen depositions, and a three day evidentiary hearing.  The facts of this well-known case will not be repeated here, except to remind the reader that the court imposed $8.5 million in sanctions against the plaintiff, Qualcomm, due to the company's conduct during discovery.  Qualcomm failed to produce thousands of electronic documents which undermined Qualcomm's patent infringement case.

Acknowledging the “division” of authority, the court in CBT Flint Partners, LLC v. Return Path, Inc., 676 F. Supp. 2d 1376 (N.D. Ga. 2009) awarded under 28 U.S.C. §1920(4) a successful defendant in a patent infringement case nearly $250,000 for the costs incurred in the collection and processing of more than 1.4 million electronic documents and six versions of its source code requested by the plaintiff.  In the recently published opinion, the court reasoned that the services provided by the defendant’s electronic discovery consultant, which included the preservation, collection and production of all relevant electronic documents, decryption, as well as extraction of proprietary data and statistical and keyword analysis, were “highly technical” and “not the type of services that attorneys or paralegals are trained for or are capable of providing.”  According to the court, the e-discovery consultant’s services are the “21st Century equivalent of making copies.”   The court further stated that “[t]axation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demands for electronic discovery.” 

Companies, large and small, lose millions of dollars every year when employees take confidential and trade secret information.  When an employee leaves and joins a competitor and the competitor suddenly signs a deal with a client, not only do eyebrows get raised, but litigation is likely to follow, particularly if the former employee used confidential company information to lure the client away.  Many companies overlook some of the easiest and cost-effective ways to prevent the loss of their proprietary and confidential information. In fact, most companies already have the required tools; they just need to use them.  

After granting a motion to intervene, the court in Convertino v. United States Department of Justice, 2009 WL 4716034 (D.D.C. Dec. 10, 2009) ruled that the plaintiff in a Privacy Act  lawsuit was not entitled to discovery of various emails sent by Jonathan Tukel, a former Assistant United States Attorney and dismissed individual defendant, to his private counsel at Cadwalader, Wickersham & Taft.   According to the court, even though Tukel and his private counsel exchanged emails using Tukel’s DOJ email address, Tukel had a “reasonable expectation” that these email communications were private and were therefore protected by the attorney-client privilege.  Noting that the DOJ does not ban personal use of its email and that Tukel did not know that the DOJ could access and save the emails from his account, the Convertino court held that Tukel’s “subjective” expectation of privacy was reasonable under the circumstances.  The Convertino court’s ruling is the third decision in recent months to consider whether an employee’s email communications sent to counsel on an office computer are privileged.