Court Reviews Plaintiff’s Facebook Account to Identify Material Subject to Discovery


Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371 (M.D. Pa. June 22, 2011)

From eDiscoverylaw.com

In this case arising from a car accident which the plaintiff claimed resulted in physical and psychological injuries, the parties invited the court to conduct a review of Plaintiff’s social networking accounts “in order to determine whether certain information containedwithin Plaintiff’s accountsis properly subject to discovery.” Using Plaintiff’s log-in information, the court reviewed Plaintiff’s Facebook account, including “a thorough review of Plaintiff’s ‘Profile’ postings, photographs, and other information.” (Plaintiff’s MySpace account was not searched asit hadnot been accessed since November 2008 and Plaintiff could not locatethe log-in information.) The court then identified potentially relevant information to be produced, including, for example, photos and updates indicating recent motorcycle trips and “photographs and comments suggesting that he may have recently ridden a mule.” In finding that some of the “public information contained in Plaintiff’s account is properly subject to limited discovery in this case,” the court noted Plaintiff’s acknowledgment that “limited [relevant] ‘public’ information is clearly discoverable under recent case law.”

The court closed this opinion with a footnote expressing its “confusion” as to why its assistance was required in this instance and reasoning that because Plaintiff was most familiar with his own account, “it would have been substantially more efficient for Plaintiff to have conducted this initial review and then, if he deemed it warranted, to object to disclosure of some or all of the potentially responsive information.” The court acknowledged that the “scope of discovery into social media sites ‘requires the application of basic discovery principles in a novel context’” and that “the challenge is to ‘define appropriately broad limits … on the discovery ability of social communications,’” but reiterated its point that (subject to a properly narrow request) “it would have been both possible and proper for Plaintiff to have undertaken the initial review of his Facebook account to determine whether it contained responsive information” and to thereafter involve the court if a dispute remained as to whether that information was subject to production.

The full opinion can be see here

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The Four Factor Test for Employee Expectation of Privacy


On May 23, in SEC v. Reserve Management Co. Inc.,the U.S. District Court for the Southern District of New York ruled that an employee does not have a reasonable expectation of privacy with respect to communications with a spouse through an employer’s email system. In reaching its decision, the court used the four-part test from In re Asia Global Crossing Ltd to determine if the employee had a reasonable expectation of privacy. A key point in this analysis was the presence and actual notice to employees of an email policy that both forbade personal communications and warned employees of possible disclosure of company-controlled email communications. A write up of this outcome from the National Law Review can be viewed here.

Several cases have afforded protection to employees who may reasonably have expected privacy when using company IT systems. In Asia Global Crossing, the court set forth a four-factor test to assess the reasonableness of an employee’s privacy expectation in personal email transmitted through a corporate email system. The Asia Global Crossing test is composed of four basic questions:

  1. Does the company maintain a policy banning personal content or other objectionable use?
  2. Does the company monitor the use of the employee’s computer or email?
  3. Do third parties have a right of access to the computer or emails?
  4. Did the company notify the employee, or was the employee aware, of the use and monitoring policies?

If all four questions can be answered in the affirmative, then the employee should have no expectation of privacy.

This four factor test has been adopted by a number of courts faced with the task of determining the reasonableness of privacy expectations. As the Reserve Management court pointed out, “the cases in this area tend to be highly fact-specific and the outcomes are largely determined by the particular policy language adopted by the employer.”

Further questions that should be considered when putting one of these policies together:

  • Does the company maintain a policy banning personal content or other objectionable use?
    • Is the policy written down?
    • How often is it updated?
    • Was the policy communicated to employees?
    • How was it communicated?
    • Can employees find it if they want to?
    • Was the policy reviewed by legal staff?
  • Does the company monitor the use of the employee’s computer or email?
    • Did the company explain to the employees that the company and other legal entities has a right to access and review employee email?
    • How was this communicated?
  • Do third parties have a right of access to the computer or emails?
    • Was this explained to all employees
    • How was it communicated to the employees?
  • Did the company notify the employee, or was the employee aware, of the use and monitoring policies?
    • How did the company notify the employees?
    • Does the company audit the policy?
    • Does the company enforce the policy?

Some of the added question detail above highlights intent. Is the company’s intention to not allow personal communications from their employees (usually not) or is the intent to educate the employees as to their lack of privacy if they choose to utilize the corporate email system for personal use?

This review serves to remind organizations of the importance of creating and training employees on well thought out “use policies”. A well thought out and comprehensive use policy that employees are not aware of is in reality, not a policy. Lastly, when creating and adopting these use policies, it is always a good practice to get acknowledgements from all employees as to their understanding of the use policy.

Placing a “Computer Illiterate” in charge of eDiscovery is not a winning strategy for the defense


A case that had been decided for the plaintiff years earlier was reopened due to eDiscovery process questions. In the case of Green v. Blitz U.S.A., No. 2:07-CV-372 (TJW), 2011 WL 806011 (E.D. Tex. Mar. 1, 2011), the original attorney for the plaintiff was a plaintiff’s attorney on another case against the same defendant. During discovery for this other trial, the plaintiff’s attorney found out that evidence that should have been turned over for the previous plaintiff’s trial had not been. Because of this fact, the original lawsuit was reopened. In this second trial it was revealed the defendant had placed a single person in charge of electronic discovery for several ongoing cases. The problem with this was the person put in charge of eDiscovery was less than experienced. In fact, it was revealed that the employee “solely responsible for searching for and collecting ESI relevant to litigation between 2004 and 2007 issued no litigation hold, conducted no electronic word searches for emails, and made no effort to speak with defendant’s IT department regarding how to search for electronic documents.  In fact, the employee himself stated that he was “about as computer illiterate as they get.”

Making matters worse, some of the information discovered after the close of plaintiff’s case would have easily been identified with a simple word search, as the target words were in the subject line of one of the undisclosed emails specifically discussed by the court.  Also of note, as to the specific email discussed by the court, was the fact that the employee tasked with discovery was a recipient of the email and still failed to disclose it in discovery.  Despite failing to produce relevant material, the defendant made the certification that “full and complete disclosure ha[d] been made in accordance with the Federal Rule’s of Civil Procedure and the Court’s orders.”

The court also discussed defendant’s failure to issue a litigation hold to its employees and its failure to cease rotation of its backup tapes, two other actions expected when litigation is reasonable anticipated.  Accordingly, the court concluded that “it will never be known how much prejudice against the plaintiff was actually caused by the defendant’s failure to preserve documents” and found that sanctions were warranted.

Given the context and type of documents not disclosed, the court found that defendant’s conduct was a willful violation of the Court’s Discovery Order and that plaintiff had been prejudiced as a result. In other words, the original award would have been much higher if the ESI was found and turned over.

I don’t know if the defendant’s counsel choose a totally inexperienced person to run the eDiscovery process was just stupid or was part of a strategy to insure responsive ESI was not found. I think, minus proof of the second, we will have to go with the first explanation.

That being said, litigation hold and eDiscovery is a serious business and should never be taken lightly. Having control of your organization’s ESI is an important responsibility expected by the courts.

Case summary from eDiscoverylaw.com

Beware: Your Facebook Posts Could End Up in Court


Social networking posters beware…your Facebook and other social media accounts may be seen by more than just your friends; in fact, what you post and tweet could become court evidence.

But many of us don’t consider these implications when tweeting and posting. Current employers, potential employers and, yes, even attorneys review social networking sites for information on workers, job candidates and litigants.

Individuals as well as organizations need to carefully consider what they post to these sites. In the personal injury case of McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), Hummingbird Speedway, Inc. sought access to plaintiff’s social network accounts, requesting an eDiscovery production of his usernames, log-ins and passwords.

Plaintiff objected, arguing that the information on those sites was confidential.  Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days. Additionally, the court ordered that plaintiff should not take steps to delete or alter the existing information on his social network accounts. The court said:

Specifically addressing the expectation of privacy with regard to Facebook and MySpace, the court found that any such expectation “would be unrealistic.”  The court then analyzed the relevant policies of the two sites, and concluded as to both that, “[w]hen a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate.”  Accordingly, the court determined that defendant could not successfully assert that his accounts were confidential.  In so holding, the court also noted the possibility that communications could be disclosed by friends of the account holder with whom the communications were shared.

Organizations need to establish and enforce employee social media policies to lower their risk and better protect their brand. Check out this related blog titled “Companies Need a Social Media Policy” for suggestions on establishing a corporate social media policy. And for all of us posters, bloggers and tweeters, be careful what you say; otherwise, it could be read back to you by an employer or judge.

Custodial Self-Discovery and Common Sense


The eDiscoveryJournal, recently ran an article about desktop collection for eDiscovery and mentioned the case of Roffe v Eagle Rock, a case involving custodial self-discovery and expectations from the Judge. The transcript from the conversation between the Judge and both parties of the case can be seen here.

This transcript is interesting in that the judge clearly explains his (and most judges) expectations of the discovery process especially in dealing with custodian’s email accounts and personal computers. In the exchange, one of the defendant’s attorneys explains that he has received some potentially responsive emails from the defendants and is still waiting for some more. To clarify, the Judge asks;

Am I correct that you have been relying on, for the other two committee members, what they self-selected to put in their transaction files, in terms of what you obtained and produced?

The defense attorney answers;

That’s correct, your Honor. I was told that they uniformly would put all of their Eagle Rock e-mails into that folder. I have not checked, and I don’t know whether that is true or whether that is accurate. I believe they are telling the truth, but I don’t know if that is accurate.

In the defense attorney’s answer it becomes obvious that he is relying on the defendants to find and turnover all responsive emails to him and that he has not done any supervisory direction or auditing of the discovery process.

The Judge immediately responds to the defense attorney;

Then here is my ruling. This is not satisfactory. From what you have described to me, you are not doing what you should be doing. First of all, you do not rely on a defendant to search their own e-mail system. Okay? There needs to be a lawyer who goes and makes sure the collection is done properly. So both as to the two directors who already have produced — we don’t rely on people who are defendants to decide what documents are responsive, at least not in this Court. And you certainly need to put somebody on a plane to go out and see Mr. Smith.

So the question for me would be, one, how fast can you do this right? And that means not only the e-mails from Mr. Smith. As I say, somebody should have been on a plane a long time ago to go through his e-mails. And if he chose to use his personal computer, well, that was his bad choice. All right? And if he has it mixed in other stuff that he gets, 150 e-mails a day, or whatever, that was his bad choice. That makes it all the more essential that a lawyer get on a plane, and go and sit down with Mr. Smith, and go through his e-mail and make sure that what is produced is — what is responsive is appropriately produced. And whoever it is better check his auto-delete settings, and they had better find out if these things have been auto-deleting every 30 days or 60 days or 90 days, and they better think through, as somebody properly should have done, whether there needs to be some type of, again, image and forensic check, to make sure that something hasn’t been lost in what sounds to me to be a lackadaisical, unsatisfactory process.

In this exchange, the Judge clearly states; we don’t rely on people who are defendants to decide what documents are responsive. Custodial self-discovery is like the wolf guarding the chicken coop. So for large matters with many custodians with potentially responsive ESI, what can an organization do?

First, the defense attorney should be overseeing the discovery process to ensure it is accomplished correctly. In most courts, the attorney has to certify that the discovery process was done correctly and what attorney wants to do that if they didn’t really manage it?

Second, relying on defendants to find and turn over potentially responsive ESI can be problematic. Most of them will attempt to do what’s right, to the best of their understanding. Those few that could have something to hide may find ways to do a subpar job in the discovery process. If I am the opposing counsel, I am going to want to know if self discovery was relied on. There are a couple of ways to accomplish a custodian-centric discovery. You can image all custodians workstations etc and filter the images for responsive ESI. You can conduct one on one interview with custodians and run search applications on their workstations. Both of these processes are expensive and time consuming.

Litigation Hold, Adverse Inference and Additional eDiscovery Costs


In Melendres v. Arpaio, CV-07-2513-PHX (D. Ariz. February 11, 2010) (UNPUBLISHED),  U.S. District Court Judge G. Murray Snow granted plaintiffs’ motion for sanctions and ruled that the Maricopa County Sheriff’s Office (“MCSO”) failed to issue a timely litigation hold resulting in the destruction of relevant documents, including e-mails.

In discovery, plaintiffs learned the MCSO shredded relevant documents (i.e., stat sheets) and deleted e-mails.  In addition, not a single deponent was aware of their obligation to preserve evidence.

The court found the MCSO was at least negligent in failing to preserve the stat sheets and permitted plaintiffs to file suggested possible adverse inferences concerning the destroyed stat sheets.  With respect to e-mails, the defendants admitted that they had purged all email communications related to the immigration sweeps.

However, certain e-mails that were separately saved by a user may still be recoverable.  The court deferred the issue of sanctions until defendants provided to plaintiffs:  (1) a description of the steps taken to recover all responsive e-mails from active and back-up systems; (2) a complete list of the new documents that have been recovered and the dates of recovery; (3) the sources from which the additional documents were recovered; (4) the inherent limitations on defendants search for documents that were imposed by defendants’ document retention systems; and (5) the components of that system.

The above content is taken from the Ryley Carlock & Applewhite website and can be read in its entirerty here.

This case highlights the need for a timely litigation hold notice for all potentially responsive ESI including email. It also points out the additional costs which can be incurred if the litigation hold requirement is not followed. Point one in the paragraph above calls out the additional requirement for MCSO to now check all backup systems for potentially responsive emails that were deleted. This process can be extremely expensive and time consuming.

Ideally, a properly administered litigation hold process would negate the need to restore backup tapes which can run between $2900 to $4500 per tape restored.

Anatomy of an Adverse Inference


In the investor related action, Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, No. CIV. 05-9016, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 11, 2010) the defendants, who were connected to a hedge fund that lost money, sought sanctions against the plaintiffs for failing to preserve and produce documents, including ESI, and for submitting false declarations regarding their collection and production efforts. The Judge in this case was the Honorable Shira A. Scheindlin.

This case came down to two questions about litigation holds: when should a litigation hold be initiated, and what actions are required in the placement and tracking of the litigation hold.

In addressing the charges of spoliation, the court’s opinion included:

“[i]t is well established that the duty to preserve evidence arises when a party reasonably anticipates litigation. “‘[O]nce a party reasonably anticipates litigation; it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.’” A plaintiff’s duty is more often triggered before litigation commences, in large part because plaintiffs control the timing of litigation.

When the spoliating party’s conduct is sufficiently egregious to justify a court’s imposition of a presumption of relevance and prejudice, or when the spoliating party’s conduct warrants permitting the jury to make such a presumption, the burden then shifts to the spoliating party to rebut that presumption.

“[i]n short, the innocent party must prove the following three elements: that the spoliating party (1) had control over the evidence and an obligation to preserve it at the time of destruction or loss; (2) acted with a culpable state of mind upon destroying or losing the evidence; and that (3) the missing evidence is relevant to the innocent party’s claim or defense.”

The Court issued the following adverse inference instruction to the jury:

The Citco Defendants have demonstrated that most plaintiffs conducted discovery in an ignorant and indifferent fashion. With respect to the grossly negligent plaintiffs – 2M, Hunnicutt, Coronation, the Chagnon Plaintiffs, Bombardier Trusts, and the Bombardier Foundation – I will give the following jury charge:

The Citco Defendants have argued that 2M, Hunnicutt, Coronation, the Chagnon Plaintiffs, Bombardier Trusts, and the Bombardier Foundation destroyed relevant evidence, or failed to prevent the destruction of relevant evidence. This is known as the “spoliation of evidence.”

Spoliation is the destruction of evidence or the failure to preserve property [*104] for another’s use as evidence in pending or reasonably foreseeable litigation. To demonstrate that spoliation occurred, the Citco Defendants bear the burden of proving the following two elements by a preponderance of the evidence:

First, that relevant evidence was destroyed after the duty to preserve arose. Evidence is relevant if it would have clarified a fact at issue in the trial and otherwise would naturally have been introduced into evidence; and

Second, that 2M, Hunnicutt, Coronation, the Chagnon Plaintiffs, Bombardier Trusts, and the Bombardier Foundation were grossly negligent in their failure to preserve the evidence.

I instruct you, as a matter of law, that each of these plaintiffs failed to preserve evidence after its duty to preserve arose. 250 As a result, you may presume, if you so choose, that such lost evidence was relevant, and that it would have been favorable to the Citco Defendants. In deciding whether to adopt this presumption, you may take into account the egregiousness of the plaintiffs’ conduct in failing to preserve the evidence.

However, each of these plaintiffs has offered evidence that (1) no evidence was lost; (2) if evidence was lost, it was not relevant; and (3) if evidence was lost and it was relevant, it would not have been favorable to the Citco Defendants.

If you decline to presume that the lost evidence was relevant or would have been favorable to the Citco Defendants, then your consideration of the lost evidence is at an end, and you will not draw any inference arising from the lost evidence.

However, if you decide to presume that the lost evidence was relevant and would have been unfavorable to the Citco Defendants, you must next decide whether any of the following plaintiffs have rebutted that presumption: 2M, Hunnicutt, Coronation, the Chagnon Plaintiffs, Bombardier Trusts, or the Bombardier Foundation. If you determine that a plaintiff has rebutted the presumption that the lost evidence was either relevant or favorable to the Citco Defendants, you will not draw any inference arising from the lost evidence against that plaintiff. If, on the other hand, you determine that a plaintiff has not rebutted the presumption that the lost evidence was both relevant and favorable to the Citco Defendants, you may draw an inference against that plaintiff and in favor of the Citco Defendants – namely that the lost evidence would have been  favorable to the Citco Defendants.

Each plaintiff is entitled to your separate consideration. The question as to whether the Citco Defendants have proven spoliation is personal to each plaintiff and must be decided by you as to each plaintiff individually.

The Court also noted, “[w]hile litigants are not required to execute document productions with absolute precision, at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation. All of the plaintiffs in this motion failed to do so and have been sanctioned accordingly.”

The courts are moving towards being much less lenient in the question of when should ESI be protected from deletion due to potential civil litigation and also whats expected of the attorneys in protecting potentially responsive ESI.   Corporate Attorneys should always be conservative in their handling of the litigation hold question.

Place holds quickly, communicate the holds to custodians quickly, even those at the periphery of the case, track the custodians actions around the hold communication, and lastly, document everything.

Taking litigation holds seriously will lower your overall litigation cost and risk.