By now, most litigators should know that they have an affirmative duty to advise their clients about the duty to preserve potentially relevant documents.  Despite this, the United States District Court for the Southern District of New York recently denied an attorney defendant’s motion for summary judgment in part because the record was not clear as to whether the attorney defendant fulfilled its obligations with respect to the duty to preserve.

Industrial Quick Search, Inc., Michael Meiresonne, and Meiresonne & Associates (collectively “Plaintiffs”) sued their law firm Miller, Rosado & Alogis, LLP (“Defendants”) for malpractice.  Neil Miller and Chris Rosado, named partners of the firm, were also individually named as Defendants.  Defendants represented Plaintiffs in an underlying copyright infringement lawsuit in which default judgement was entered against Plaintiffs for misappropriating confidential information, plagiarizing copyrighted material, and for deliberately destroying potentially relevant documents. Continue Reading FAILURE TO ADEQUATELY ADVISE CLIENTS ON THEIR PRESERVATION OBLIGATIONS CAN BE CONSIDERED MALPRACTICE

Eleven years into the court order levied on the NSA to preserve backup tapes containing data about the NSA surveillance efforts, it’s come to light that the NSA failed to take adequate steps to ensure the data was not deleted.  Tapes containing data between 2001-2007 were deleted in 2009, 2011, and 2016, showing a systemic problem with proper data preservation.  For an agency that arguably “saves everything,” this news is rather comical.   The NSA’s deputy director of capabilities apologized for the failure in an October declaration, while another NSA official claimed the tapes were deleted during “housecleaning efforts aimed at making space for incoming information.”  Oddly enough, there was no explanation as to why live incoming information would have been put on backup tapes, adding to the mystery of the real cause of the tape destruction.  Thus far, there have been no discussions of sanctions and no requests on U.S. District Court Judge Jeffrey White to do so, at least yet.  The NSA isn’t in a great position, however, since in May 2014, an NSA official assured the court that the data on the tapes was safe.  The NSA now claims they are using “extraordinary” effort to try and recover the lost data.  However, anyone familiar with how tape rotation works should understand it’s quite likely that the tapes were overwritten with new data, effectively making the old data permanently unreadable.  The facts seem to point to a clear case of spoliation, and this time, it’s by one of the U.S. Government agencies that possessed data storage capabilities unsurpassed by any in the world.

A trial court opinion involving allegations of spoliation of text messages on a mobile phone in the Southern District of New York has gotten attention because of the application of legal preservation standards.  Ronnie Van Zant, Inc. v. Pyle 2017 BL 3018, S.D.N.Y. 17 Civ. 3360 (RWS), 8/23/17) is an interesting read, not just because it involves odd characters, intrigue and drama surrounding one of the greatest Southern Rock bands of all time.  It also includes some instructive information about the application of the “practical ability” test for preservation, and the uphill battle for witnesses who lose credibility in testimony about what they did and did not do in a preservation effort.

Not long after the tragic plane crash that resulted in the deaths of Lynyrd Skynyrd lead singer Ronnie Van Zandt and his co-founding band member Steven Gaines,  Artimus Pyle, the former drummer, entered an agreement with the surviving heirs and other members of the band.  The agreement involved promises to never perform as “Lynyrd Skynyrd,” or to generally profit from the name of the band or the tragic deaths of Van Zant or Gaines without approval of the original parties to the agreement.  Their dramatically named “blood oath” agreement was more concretely memorialized in a Consent Order in 1988, following other litigation, which Pyle signed.

Over 20 years after the 1988 Consent Order, the drama that spawned the litigation began in a story that sounds like it came from a Netflix mini-series.  A film director named Jared Cohn, who worked under contract for an independent record label-turned movie producer, Cleopatra Records, Inc. (“Cleopatra”) reached out to Pyle about making a movie centered around the band and Pyle’s life in it.  Cohn was hired by the founder and co-owner of Cleopatra Records, Brian Perera, who is another interesting character in his own right. Pyle met and consulted with Perera on multiple occasions about ideas for a film generally depicting his life and the plane crash, which Pyle survived.  In their first conversations, Pyle did not mention the 1988 Consent Order, but the Order eventually was delivered to Cleopatra.  The copy of the Order was also eventually followed by a “cease and desist” letter and other correspondence from the Plaintiffs’ counsel.  All the while, Cleopatra’s movie production work continued. Continue Reading Spoliation and Southern Rock

Court Denies Plaintiff’s Motion to Compel

In Mirmina v. Genpact LLC, 2017 BL 260425, D. Conn., Civil No. 3:16CV00614 (AWT), the Court denied Plaintiff’s motion to compel additional responsive electronic communications despite the fact that an individual directly involved in the underlying claims of the suit “self-identified” potentially responsive emails.  The Court based its decision a number of important  factors:

  • Defendant Genpact’s in-house counsel produced an affidavit outlining the process used to preserve and search potentially responsive emails;
  • Genpact’s in-house counsel supervised the preservation and search process;
  • Plaintiff Mirmina was unable to identify any authority stating that self-identification was improper;
  • Mirmina was also unable to identify any emails that Genpact had not produced and was merely speculating that Genpact’s email production was deficient.

Case Background

Scott Mirmina, a former Genpact recruitment manager, sued his previous employer, a professional services firm, alleging age, race, and gender discrimination.

In May of 2017, Plaintiff Mirmina filed a Motion to Compel additional responses to specific discovery requests.  This motion was denied in June 2017, except for materials described in Genpact’s initial disclosures that had not yet been produced.

In July of 2017, Mirmina filed another Motion to Compel asking the court to force Genpact to produce additional responsive emails.  Mirmina stated that he was “concerned” that Genpact had withheld responsive emails and that Genpact’s search for responsive emails was inadequate because an employee directly involved with the underlying issues in the litigation had self-identified potentially responsive emails.

The Court denied Mirmina’s Motion to Compel after Genpact’s counsel described the process used to identify responsive emails.  Specifically, Genpact’s in-house counsel averred that they:

  • issued a timely and detailed litigation hold to potential ESI custodians;
  • provided instructions to the custodians on how to search for potentially responsive emails;
  • provided custodians with specific search parameters to identify potentially responsive emails;
  • explained importance of thoroughly searching for potentially responsive emails; and
  • provided guidance to custodians when they had questions about the search process.

The Court also determined that Mirmina’s allegations that responsive emails had not been produced was based on mere speculation.  The court held that this speculation was insufficient to require Genpact to conduct additional searches for potentially responsive emails.

Practical Takeaways

Self-identification of potentially responsive documents by custodians is not usually recommended.  There are obvious risks involved, including custodians not wanting to produce documents that could be damaging for themselves or their employer.  Further, there are risks involved in having custodians determine what may or may not be responsive to document requests. However, the Court’s decision in this matter describes a scenario in which self -identification of emails may be defensible.

The Court indicated that the primary driver for denying Mirmina’s Motion to Compel was the affidavit provided by Genpact’s in-house counsel detailing Defendant’s document identification and preservation process.  The most important practical takeaway from the Court’s ruling was that self-identification can be defensible, so long as a rigorous process is followed and documented.  This process includes drafting a timely and detailed litigation hold notice, providing instruction to custodians on how to identify potentially relevant documents, and answering questions that custodians may have throughout the process.

Finally, the Court made clear that purely “speculating” that an opposing party’s production is deficient is not enough to compel additional searches or document productions.  In order to compel an additional search for communications, a moving party must provide evidence to support its claim of a deficient production.

In an interesting decision regarding the spoliation of evidence via a mobile device, Magistrate Judge Terry F. Moorer determined that the newly amended Federal Rule 37(e) – enacted on December 1, 2015 – did not apply to the spoliation case, as the case was filed prior to the rule’s enactment.  (Morrison v. Charles J. Veale, M.D., P.C., 2017 BL 21478, M.D. Ala., No. 3:14-cv-1020-TFM, 1/25/17).

Karla Morrison, a former employee of the medical practice Charles J. Veale, M.D., P.C. sued her employer in October of 2014 alleging that the practice violated the Fair Labor Standards Act.  Following the close of discovery in August of 2016, the defendant filed a motion for sanctions for spoliation of evidence alleging that Morrison logged into her office email account after her termination and deleted emails from the account.  The defendant bolstered this argument by alleging that Morrison added 2-step verification to her log-in process in April 2015 – almost 6 months after her termination.  Morrison admitted to accessing her office email days after her termination to “close out” items, but denied any further use of the account.

For those unfamiliar, 2-step verification is an additional security measure that confirms a user’s identity through two components, usually a password followed by a code sent to a personal device, for example.  When in place, it adds an additional level of security to an account, thus making it less susceptible to hacking.  Continue Reading Interesting Sanctions Analysis Applies “Old” Bad Faith Standard Post-December 2015 Amendments