e-Discovery Docket Sheet

In an employment-discrimination case, the plaintiff filed a motion for sanctions against the defendants for failing to preserve electronic documents and for spoliating e-mail evidence. Citing Zubulake, the court addressed the defendants' duty to preserve e-mails and other relevant documents. The evidence showed that the defendants were on notice of the lawsuit long before they halted their data-destruction policy. In fact, the defendants admitted that they never issued a company-wide instruction regarding suspension of their data-destruction policy and that they did not save the plaintiff's e-mails relating to the harassment incidents or his termination. Based on this evidence, the court granted the plaintiff's motion for sanctions and issued an adverse-inference jury instruction relating to spoliation of the e-mails. The court declared that the defendants acted in bad faith by failing to suspend their e-mail and data-destruction policy, and by failing to preserve essential personnel documents to comply with their preservation obligations. Broccoli v. Echostar Communications Corp., 2005 WL 1863176 (D. Md. Aug. 4, 2005).

In an appeal from a rape conviction, the defendant argued, inter alia, that password-protected documents contained on his employer-issued laptop in a folder marked “Attorney” were protected by the attorney-client privilege. The trial court had previously determined that these documents were not subject to the attorney-client privilege because the defendant had no reasonable expectation of privacy in documents on an employer-issued laptop computer. On appeal, the state argued that the defendant did not have a reasonable expectation of privacy based on the terms of an employment agreement in which the defendant acknowledged he had no expectation of privacy for any company-owned property. The appellate court reversed the trial court's holding and found that the defendant “made substantial efforts to protect the documents from disclosure by password-protecting them and segregating them in a clearly marked and designated folder.” People v. Jiang, 31 Cal.Rptr.3d 227 (Cal Ct. App. 2005).

In a medical-malpractice lawsuit, the plaintiff moved for a new trial after the jury found in favor of the defendant. The plaintiff alleged that the court erroneously denied a request for an expert examination of the defendant's computer. In particular, the plaintiff sought to discover whether the date that photographs of her face were taken could be retrieved from the defendant's hard drive. The original photographs were lost during a computer-system conversion; however, the defendant was able to recover some of the photos with the assistance of a data-recovery service. The recovered photos displayed only the dates on which the photos were imported into the new system, and not the dates on which they were originally taken. Despite this, the plaintiff asserted that the defendant's computer consultant testified in a deposition that the original dates were retrievable. The court determined that the expert actually stated that it would be impossible to print any of the photographs with dates indicating when they were originally taken. In denying the motion for a new trial, the court concluded that the plaintiff was not prejudiced by being prohibited from presenting the import-date information to the jury and added that the court was well within its bounds to prevent further discovery of the computer system, given that the plaintiff's request was made a year and a half after the discovery period closed. Wild v. Alster, 377 F.Supp.2d 186 (D.D.C. 2005).

The defendant appealed from an assault conviction, asserting that the trial court erred in admitting improperly authenticated computerized instant messages into evidence. The defendant argued that the messages should have been authenticated by either the source Internet service provider or by computer forensics-expert testimony. Rejecting this argument, the appellate court declared that the circumstantial evidence properly rendered the instant messages admissible. The court noted that the defendant's argument would require it to “create a whole new body of law just to deal with e-mails or instant messages.” The court also stated that it found “no justification for constructing unique rules for admissibility of electronic communications such as instant messages.” In this case, the instant messages were properly authenticated based on the following factual circumstances: the defendant referred to himself by name, his testimony mirrored some of the comments in the instant messages and he referenced one of the instant messages in a conversation with school authorities. In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005).

Court Finds Defendant Acted in Bad Faith
By Failing to Halt e-Mail Destruction Policy

In an employment-discrimination case, the plaintiff filed a motion for sanctions against the defendants for failing to preserve electronic documents and for spoliating e-mail evidence. Citing Zubulake, the court addressed the defendants' duty to preserve e-mails and other relevant documents. The evidence showed that the defendants were on notice of the lawsuit long before they halted their data-destruction policy. In fact, the defendants admitted that they never issued a company-wide instruction regarding suspension of their data-destruction policy and that they did not save the plaintiff's e-mails relating to the harassment incidents or his termination. Based on this evidence, the court granted the plaintiff's motion for sanctions and issued an adverse-inference jury instruction relating to spoliation of the e-mails. The court declared that the defendants acted in bad faith by failing to suspend their e-mail and data-destruction policy, and by failing to preserve essential personnel documents to comply with their preservation obligations. Broccoli v. Echostar Communications Corp., 2005 WL 1863176 (D. Md. Aug. 4, 2005).

In an appeal from a rape conviction, the defendant argued, inter alia, that password-protected documents contained on his employer-issued laptop in a folder marked “Attorney” were protected by the attorney-client privilege. The trial court had previously determined that these documents were not subject to the attorney-client privilege because the defendant had no reasonable expectation of privacy in documents on an employer-issued laptop computer. On appeal, the state argued that the defendant did not have a reasonable expectation of privacy based on the terms of an employment agreement in which the defendant acknowledged he had no expectation of privacy for any company-owned property. The appellate court reversed the trial court's holding and found that the defendant “made substantial efforts to protect the documents from disclosure by password-protecting them and segregating them in a clearly marked and designated folder.” People v. Jiang , 31 Cal.Rptr.3d 227 (Cal Ct. App. 2005).

In a medical-malpractice lawsuit, the plaintiff moved for a new trial after the jury found in favor of the defendant. The plaintiff alleged that the court erroneously denied a request for an expert examination of the defendant's computer. In particular, the plaintiff sought to discover whether the date that photographs of her face were taken could be retrieved from the defendant's hard drive. The original photographs were lost during a computer-system conversion; however, the defendant was able to recover some of the photos with the assistance of a data-recovery service. The recovered photos displayed only the dates on which the photos were imported into the new system, and not the dates on which they were originally taken. Despite this, the plaintiff asserted that the defendant's computer consultant testified in a deposition that the original dates were retrievable. The court determined that the expert actually stated that it would be impossible to print any of the photographs with dates indicating when they were originally taken. In denying the motion for a new trial, the court concluded that the plaintiff was not prejudiced by being prohibited from presenting the import-date information to the jury and added that the court was well within its bounds to prevent further discovery of the computer system, given that the plaintiff's request was made a year and a half after the discovery period closed. Wild v. Alster , 377 F.Supp.2d 186 (D.D.C. 2005).

The defendant appealed from an assault conviction, asserting that the trial court erred in admitting improperly authenticated computerized instant messages into evidence. The defendant argued that the messages should have been authenticated by either the source Internet service provider or by computer forensics-expert testimony. Rejecting this argument, the appellate court declared that the circumstantial evidence properly rendered the instant messages admissible. The court noted that the defendant's argument would require it to “create a whole new body of law just to deal with e-mails or instant messages.” The court also stated that it found “no justification for constructing unique rules for admissibility of electronic communications such as instant messages.” In this case, the instant messages were properly authenticated based on the following factual circumstances: the defendant referred to himself by name, his testimony mirrored some of the comments in the instant messages and he referenced one of the instant messages in a conversation with school authorities. In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005).