Gibbons Law Alert

Gibbons Law Alert

Category: General Litigation

“Accidentally” Destroying Years of Text Messages Is No Defense to Spoliation Sanctions

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Posted in General Litigation

On March 1, 2021

The New York Supreme Court recently granted a defendant spoliation sanctions, in the form of an adverse inference instruction, against the plaintiff for the “accidental” destruction of years’ worth of text messages from the plaintiff’s cellphones. In Iacovacci v. Brevet Holdings, LLC, the plaintiff was terminated from his employment with the defendants in October 2016, through a letter that referred to “possible litigation” and requested that the plaintiff “preserve … electronically stored information (‘ESI’) relating” to the defendant’s business, “includ[ing] all emails, text messages, … and the like, … [including] material on a phone.” Several days after receiving the termination letter, the plaintiff filed a wrongful termination and breach of contract action, and the defendants filed an answer with counterclaims alleging misappropriation of the defendants’ documents, breach of fiduciary duty, and self-dealing. Thereafter, a years-long discovery dispute ensued. The defendants served several requests for documents, including text messages, but the plaintiff objected to the demands as irrelevant and overbroad, and in March 2018, the plaintiff filed a motion for a protective order. In May 2018, the court ordered the plaintiff to produce cellphone and electronic calendar records as requested by the defendants, and at a status conference in December 2018, the court, again, directed the plaintiff to produce the text messages within 30 days. Finally,...

Avoiding Unnecessary Costs: Court Reminds Parties to Narrowly Tailor Discovery Requests

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Posted in General Litigation

On February 16, 2021

As previously highlighted by this blog, discovery is best effectuated through cooperation by the parties in a litigation. A baseline to cooperation is adhering to the discovery rules set forth in the Federal Rules of Civil Procedure. The Supreme Court of Idaho recently issued a reminder to parties that discovery requests must be narrowly tailored in proportion to the needs of the litigation and that serving overly broad discovery requests is not a court-approved negotiation tactic. Further, prior to seeking court intervention, the parties should cooperate in an effort to resolve any discovery disputes by meeting and conferring with sincerity. In Oswald v. Costco Wholesale Corp., the plaintiff was struck by a car and pinned against another car in one of the defendant’s parking lots, causing significant and permanent injuries. The plaintiff sued the defendant, alleging the parking lot was unsafe in its design and construction. In discovery, the plaintiff propounded extremely broad discovery requests, requesting that the defendant disclose “on a nationwide basis any incident [involving] a vehicle impacting anything.” In turn, the defendant sought a protective order asserting the discovery requests were overly broad and unduly burdensome. The court agreed with the defendant, stating that the plaintiff inappropriately used the “hearing as a sort of negotiation whereby the court is expected to replace...

Opening Pandora’s Box: A Preliminary Showing of Spoliation May Result in the Compelled Production of a Litigation Hold Notice

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Posted in General Litigation

On January 28, 2021

In Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., the New York Supreme Court reminded litigants that while litigation holds are generally protected by the attorney-client privilege or under the attorney work product doctrine, a preliminary showing of spoliation of evidence may compel the production of an offending party’s litigation hold documentation. In this litigation involving clinical privileges related to an exclusive radiation oncology services agreement, the plaintiffs identified seven specific instances of spoliation by the defendants. These included certain emails that the defendants produced in hard copy form, but for which they were unable to produce the corresponding electronic version and the related metadata – which the court seemed to globally refer to as the “electronically stored information,” or ESI, relating to the emails – because they had been deleted. The plaintiffs successfully argued that the failure to produce the ESI constituted spoliation because it deprived them of the ability to understand whether there were follow-up discussions with other individuals about the content of the communications, including those who may have been copied on the communications or follow-up emails. The court granted the plaintiffs’ motion to compel the production of the defendants’ litigation hold notice because it found that the permanent deletion of the ESI “potentially deprived...

Pushing the Limit: The District of Oregon Concludes that the Attorney-Client Privilege May Apply to Communications Not Involving Attorneys

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Posted in General Litigation

On December 22, 2020

In Ozgur v. Daimler Trucks N. Am. LLC, Judge Mosman, from the United States District Court for the District of Oregon, found that certain emails in the possession of Daimler Trucks North America LLC (“Daimler”) and that were sought by plaintiff were protected by the attorney-client privilege, as the communications were made for the purpose of obtaining legal advice, despite some of the emails not including an attorney as an author or recipient. In this action, plaintiff filed suit against Daimler for age discrimination in connection with his unsuccessful job application for a position opening posted by Daimler. The position that Daimler posted was already held by a foreign national whom Daimler sought to sponsor for a H1B1 visa so that he could remain in his position. In order to sponsor its employee, Daimler had to advertise the position and establish that there were no U.S. citizens who were willing and able to perform the position, then submit such proof to the Department of Labor. To assist in complying with the Department of Labor and immigration laws, Daimler retained outside immigration counsel. The emails disputed in this proceeding were communications involving outside counsel and Daimler employees, including a recruiting manager and a hiring manager. In determining whether the disputed emails were privileged, the court stated...

District Court Denies Protective Order in Putative Class Action: Production of Relevant ESI May Be Time Consuming and Expensive, But Not Unduly Burdensome

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Posted in General Litigation

On December 17, 2020

The District Court for the Eastern District of California recently denied a defendant’s motion for a protective order in a putative class action, finding that the information requested by plaintiff was relevant and subject to pre-certification discovery, and that defendant did not show that the electronically stored information (ESI) was inaccessible due to undue burden or cost, pursuant to Rule 26(b)(2)(C). Additionally, the court determined that even if defendant could show that the ESI was “inaccessible,” plaintiff demonstrated “good cause” to order production of the ESI notwithstanding the potential burden and cost. In Sung Gon Kang v. Credit Bureau Connection Inc., plaintiff, a consumer, filed a putative class action alleging that defendant provided businesses with inaccurate consumer credit information, including that plaintiff and the proposed class of consumers were included on the United States Treasury Department’s Office of Foreign Assets Control (OFAC) list. A consumer is ineligible for credit in the United States if he or she is included on the list. Plaintiff sought to “represent classes consisting of individuals ‘about whom Defendant … sold a consumer report to a third party’ that included an OFAC Hit.” The discovery dispute centered on defendant’s objections to plaintiff’s first set of written discovery requests. Specifically, defendant objected to requests seeking the identities of individuals who had an...

Cooperation Is Key: E.D.N.Y. Decision Illustrates the Risk of Refusing to Cooperate in Discovery

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Posted in General Litigation

On December 11, 2020

While litigation is inherently adversarial, counsel and litigants would be well-served to recognize that “zealous advocacy” and cooperation need not be mutually exclusive, especially in cases with significant amounts of electronically stored information (ESI). A recent decision from the District Court for the Eastern District of New York illustrates the risk a party and/or counsel takes in refusing to engage in the meet and confer process. This decision also reaffirms the fact that, when parties are working on crafting ESI search terms, it is the parties, not the court, who are in the best position to resolve such discovery disputes through the meet and confer process required under FRCP 26. Cooperation during the discovery process is not only economical in avoiding potential costly disputes, but also required by the Federal Rules of Civil Procedure. In particular, Rule 1 instructs the parties must help the court to “secure the just, speedy, and inexpensive determination of every action and proceeding.” To effectuate that goal, Rule 26(f) requires cooperation by the parties in formulating a discovery plan and meaningfully meeting and conferring in the event a discovery dispute arises. In the event the parties fail to cooperate, Rule 37 provides the court the ability to sanction a party for failing “to cooperate in discovery.” Additionally, many times, the...

More Than $750,000 Awarded in TAR Fees Serves as Both Warning and Guidance to E-Discovery Practitioners

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Posted in General Litigation

On December 1, 2020

Last month, we discussed a recent decision from the United States District Court for the District of Kansas, Lawson v. Spirit AeroSystems, Inc.,  in which the court granted defendant’s motion to shift costs for electronically stored information (ESI) related to expenses incurred undertaking Technology Assisted Review (TAR) for approximately 322,000 documents, at plaintiff’s insistence. The court reasoned that there was good cause warranting cost-shifting because plaintiff insisted on pursuing TAR after it became disproportionate to the needs of the case. Recently, the court entertained defendant’s fee application, in which defendant sought $791,700.21 in expenses incurred in connection with TAR and $83,000 in costs and fees incurred conferring with plaintiff and related motion practice. Plaintiff objected to the amount sought, arguing that reasonable TAR expenses did not exceed $330,000. The court ultimately awarded defendant $754,029.46 in TAR-related expenses and a yet-to-be determined amount of expenses in connection with the fee application. In reviewing the fee application, the court noted that its finding of disproportionality was only reinforced by the parties’ intervening cross-motions for summary judgment, in which only one of the almost 100 exhibits submitted by plaintiff originated from defendant’s TAR production. This lone exhibit was submitted “to support an unremarkable factual contention.” In determining the amount of expenses to allocate to plaintiff, the court examined...

Court Dismisses Complaint and Sanctions Plaintiff for Fabricating ESI

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Posted in General Litigation

On November 24, 2020

The Southern District of New York recently issued significant sanctions in a case with a background story fit for Hollywood. In Carrington v. Graden, plaintiff brought claims against entertainment giants Paramount Pictures and Viacom, Inc. for sexual misconduct, unfair competition, fraud, misappropriation, federal antitrust violations, and New York State and City labor violations. Plaintiff attached various exhibits to his complaint that contained emails purportedly between defendants and non-parties. After it was discovered, through an arduous cat-and-mouse game between defendants and plaintiff, that plaintiff completely fabricated the emails that were presented in support of his claim, the court dismissed plaintiff’s claims with prejudice against all defendants and granted defendants’ application for attorneys’ fees and costs incurred in connection with their work regarding the authenticity of the emails. At the onset of the litigation, defendants sent plaintiff’s counsel a preservation notice for electronically stored information (ESI) and documents, after noting that the documents plaintiff referenced and attached as exhibits to his complaint “appeared highly questionable and inaccurate.” Significantly, the emails were not produced as native-format email communications, rather, they were all produced as email forwards from plaintiff to his attorney. Defendants, as part of a pre-motion submission to the court in connection with their anticipated motion to dismiss, submitted affidavits from the individuals who were represented as...

The Destruction of a “Startling Amount of Discovery”: District Court Imposes Severe, Case-Ending Sanctions Pursuant to Rule 37(e)(2)

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Posted in General Litigation

On November 18, 2020

The United States District Court for the Eastern District of Washington recently entered a default judgment order of terminating sanctions against defendants pursuant to Rule 37(e)(2), as a result of defendants’ wholesale destruction of a “startling amount of discovery” as part of defendants’ adoption of a document disposition program during the course of the litigation. The district court found that the defendants “purposefully destroyed” relevant electronically stored information (ESI) “to avoid their litigation obligations.” This decision highlights the importance of extreme caution in the adoption of a document disposition or information governance program, which necessarily eliminates typically large quantities of ESI, during the time period when the duty to preserve relevant ESI has been triggered. In Moreno v. Correctional Healthcare Companies, Inc., plaintiffs filed constitutional claims against defendants–providers of healthcare services to inmates–after plaintiffs’ eighteen-year-old son died while in defendants’ custody. In January 2018, prior to filing the lawsuit, plaintiffs sent a letter to defendants notifying defendants of their plan to file a lawsuit and advising defendants to “preserve all paper and electronic records that may be relevant to our clients’ claims” including “all e-mails and other electronic and paper records regardless of where they are maintained.” Plaintiffs filed the lawsuit in October 2018 and, in December 2018, served discovery requests on defendants, seeking certain categories...

Situational Awareness Matters: Two Courts Evaluate Whether TAR Processes Are Warranted and Reach Very Different Conclusions

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Posted in General Litigation

On October 27, 2020

Two recent decisions from the United States District Court for the District of Kansas (Lawson v. Spirit AeroSystems, Inc.) and the Northern District of Illinois, Eastern Division (Livingston v. City of Chicago), highlight the increasing prevalence of Technology Assisted Review (TAR) as an e-discovery tool and its role as an emerging source of discovery disputes. We have previously addressed courts that have “endorsed” the use of predictive coding and/or TAR and have recommended that litigants consider such technologies to promote efficiency in the discovery process. We have also noted that courts have been extremely hesitant to impose affirmative requirements upon litigants to use these technologies. As discussed below, these two recent decisions provide a useful analysis of situations – with vastly different outcomes – where a party has introduced TAR procedures into the discovery process. In Lawson v. Spirit AeroSystems, Inc., plaintiff, the former CEO of defendant Spirit AeroSystems, Inc., filed suit based on his claim that the defendant failed to properly disburse his retirement compensation. Defendant claimed that plaintiff violated a non-compete agreement by engaging in consulting services with one of its competitors during the two-year period subject to the restrictive covenant. Plaintiff refuted these allegations, claiming that the companies he serviced did not engage in the same business as defendant. Though the business...

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