E-Discovery Bytes : E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

The Court found there was no duty to preserve third party evidence.  Although Fed. R. Civ. P. 34(a) does provide that documents are considered to be under a party's control when that party has “the right, authority, or practical ability to obtain the documents from a non-party to the action,”  the Court determined that Praxair did not have “the sufficient legal authority or the practical ability” to ensure the preservation of documents prepared by its third-party consultants or "any legal control" over those documents.  Accordingly, the Court held that Praxair had no duty to preserve any of the documents prepared by the third-party consultants.  Absent any duty to preserve evidence under a party’s control, there could be no finding that spoliation of evidence had occurred. 

This is a holding that makes perfectly good sense.  Alice would be delighted.

However, unlike Will Smith's neuralizer, while the crime (or tort) may be erased from the hard drive, the cover-up is probably detectable to a competent forensic analyst.  In other words, the hard drive will typically contain an indication that it has been wiped.

This is a bad thing for those seeking to cover their tracks.  Attempts to destroy relevant evidence routinely lead to an adverse inference instruction if the following requirements are met: 1) the party was under an obligation to preserve the evidence; 2) the evidence was destroyed with a culpable state of mind (i.e. negligently or knowingly); and 3) the destroyed evidence was relevant.  In such a situation, the jury will typically be instructed that the party has destroyed information that would have been harmful to it.

It is easy to imagine situations in which such an instruction is far more devastating than the electronic information itself.  Thus, litigants should keep in mind the old adage that is as true today as it was in the paper era: the documents are what the documents are.  At least until a workable neuralizer is developed, attempting to hide incriminating documents creates more problems than it solves.

Upset, Ms. Kvitka sent a letter back, intimating that forged or altered emails had led to the dispute. When Ms. Kvitka threatened litigation, Defendants notified Ms. Kvitka that Puffin had a file containing several emails written by Ms. Kvitka disparaging its other clients. Defendants' counsel also sent a letter to counsel for Ms. Kvitka reminding them that Ms. Kvitka's computer - and, in particular, the hard drive and the email messages contained there - needed to be preserved as potential evidence in the threatened litigation. "As you know," the letter warned, "emails can be deleted, but they cannot be erased."

Ms. Kvitka filed suit in Pennsylvania state court in January of 2006. She later claimed that, shortly after filing the state court litigation, she began having problems with the laptop she presumably used to send the offending emails. The laptop was "doing wonky things, ridiculous things," she said, and "it was difficult to receive emails, it was difficult to send emails..."  Nonetheless, after she ordered a new laptop, she successfully received email confirmation of that order on the old laptop, and forwarded that email confirmation to her computer technician on that old laptop. Hmmm.

Once her computer technician set up the new laptop, Ms. Kvitka THREW THE OLD LAPTOP IN THE TRASH.   (I guess she couldn't pull a Torvald and burn it?)  Mere days later, the court inquired about the status of the original emails Ms. Kvitka supposedly sent from the old laptop. Ms. Kvitka failed to inform the court of the destruction of the old laptop, and instead abruptly terminated the state court litigation and refiled her claims in federal court.

Ms. Kvitka successfully concealed the fate of her old laptop until January 2008, when Defendants moved for an order of inspection of her new laptop. She then claimed that, although she had not deliberately transferred any data between laptops, "some" emails had mysteriously made their way from the old laptop to the new laptop, while others had just as mysteriously disappeared forever.

Although such magical things may happen in dolly-land, they don't happen in the real world of ESI, and the court wasn't buying it either. Finding that Ms. Kvitka had acted in bad faith and "with the greatest degree of fault" in destroying her old laptop, the court imposed sanctions for the intentional spoliation of evidence, including dismissal of Ms. Kvitka's claims and an adverse inference instruction on Defendants' cross-claims.

Naturally - and much like your dear blogger - the court couldn't resist quoting Ibsen. Noting with dismay Ms. Kvitka's many implausible attempts to conceal her malfeasance, the court counseled her that "[m]any a man can save himself, if he admits he's done wrong and takes his punishment." (I was hoping for "it would be the greatest miracle of all if you avoided sanctions here, lady.")

In his post, Mr. Ball, a computer forensic expert and e-discovery consultant, correctly points out that currently, the fees associated with collecting, reviewing, cataloging and labeling hard-copy medical records can often represent a significant litigation expense. In part, the fees are high because the records are often incomplete, irregular and not readily-accessible. Mr. Ball sees the change to computerized records as an opportunity to fix these problems. He pleads with the Administration to adopt policies and procedures that require complete, uniform, readily-available records. 

Admittedly, electronic discovery is not cheap. And in the hypothetical suggested above, you would likely have to pay a vendor to process the digital forms or obtain software to run the proposed search. But, if computerized medical records are the wave of the future, as an associate who spends at least one day per week reviewing documents, I sincerely hope Mr. Ball gets what he’s asking for: a considered response to the e-discovery issues concerning digital medical records.

First, employees will notice that their personal workplace computers sometimes "remember" their MySpace or Facebook password -- not to mention gmail, hotmail, yahoo, and other accounts -- when they sign on.  That's because the website browser takes note of and saves the password.  But here's the catch.  Because the password exists on the employer's hard drive, that password and therefore access to the social networking page, are literally within the possession, custody, and control of the employer.  With the right IT know-how, the employer can easily access the site.  The unanswered question is, is the social network page in the legal "possession, custody and control" of the employer?  What happens when the employee or employer gets sued, and the social networking page becomes responsive to document requests?

It may depend on whether the adverse party is the employer or a third entity.  In the case of the employer being sued, perhaps the employee is alleging discrimination in the workplace, and has a discussion on his Facebook page about how he made up the whole story.  Does the employer have the right to access the Facebook page on its own?  If not, does the employer have the right to demand images of the page in their document requests?  The employer's argument would be that by accessing the page at work, the employee waived any right to claim that the site is private and personal.  An even broader argument is that by posting personal information on a world-wide web, the employee has automatically given up any pretense of personal privacy at all, to the world at large.

A different implication arises if the employer is being sued by a third party for, say, legal malpractice.  The third party does not have direct access to the Facebook page or the password. Does the third party have the right to request the employee's Facebook website through document requests to the employer?  The employer, who has the password in its records, may be able to access the Facebook page.  The answer hinges on whether the Facebook page is in the possession, custody or control of the employer, thereby requiring the employer to produce it to the third party.

Second, even assuming that the Facebook page must be produced, it still may not be admissible in court.  Because websites are amorphous creatures, one must take a "snapshot" of the page in order to preserve a site as it existed at a particular moment.  This process raises numerous evidentiary issues under the admissibility rules for standard electronically stored information. This includes considerations of relevancy, hearsay, authenticity, the "best evidence" rule and undue prejudice. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. May 2007).

In sum, more people sign up for social networking websites every day.  It is only a matter of time before attorneys routinely request social networking pages during certain types of lawsuits.  The law is still uncertain as to when and whether such pages must be produced, and whether those pages are going to be admissible in court.  Employers should be mindful of these issues, and should impress upon their employees the dangers of posting inappropriate materials on their social networking pages.  Similarly, employees should be aware that what they post -- even if they explicitly limit access to their page to friends only -- may someday come back to haunt them.

In his article, published as a guest feature on the e-Discovery Team blog and the Paralegal Profs blog, Professor Hamilton does a thorough analysis of the impact law schools can have on the legal profession by teaching courses on e-discovery. Hamilton himself teaches a course on e-discovery at the University of Florida's Levin College of Law. He points out that most law schools are "blithely continuing to teach civil procedure as if nothing or little is happening 'out there.'" Id. All while the civil justice system "flounders under the weight of digital revolution." Id. Hamilton compares the inaction of law schools to "fastidiously arranging the deck chairs while the Titanic goes under." Id. He calls on law schools to educate young lawyers about the importance of e-discovery. After all, law schools are best equipped to address the e-discovery crisis, because they "operate in an educational environment absent crushing time and business restraints. Law students have the time to think, work, and struggle with e-discovery in a tolerant, incubating environment." Id. Practicing lawyers, on the other hand, are forced to attempt to learn best practices for dealing with e-discovery through CLE programs and seminars, all while trying to deal with the "crush of billable hours and the economics of the modern law firm." Id. Hamilton goes on to describe what a "practical" e-discovery course would look like.  He insists that "teaching e-discovery means working through each of the e-discovery phases outlined in the EDRM model with similar hands-on experimental approaches." Id. He also emphasizes that the students must not be lectured, they must "do." In his own course, Hamilton emphasizes practical experience, and the students conduct mock "interviews" using IT professionals from the University of Florida's Legal Technology Institute as their subjects. See Hamilton's article for a full walk-through of a course in his classroom. 

Professor Hamilton's point is a good one: the legal profession can begin to stop the bleeding from the e-discovery crisis by insisting that the new generation of lawyers be educated about e-discovery issues. Some law schools, like the Levin College of Law at the University of Florida, are already on board. But how likely are law schools across the country to answer Hamilton's call? After all, law schools have been historically slow to offer practical coursework for their students. But as sanctions from e-discovery violations build, law schools may be forced to pull their heads out of the sand and address the critical role they could play in educating the profession about e-discovery. Only time will tell if law schools will answer the call.