Gregory A. Piccionelli, ESQ

Green v. Beer, 2010 WL 3422723 (S.D.N.Y. Aug. 24, 2010)

In this day in age, it is easy to believe that everybody is familiar with email.  That is not always the case.  In this opinion, the district court reversed an order of the magistrate judge which found that plaintiffs’ attorney-client privilege was waived as a result of their son’s receipt of privileged emails where it was established that the son’s assistance was necessary to ensure plaintiffs’ timely receipt of the emails, in light of plaintiffs’ lack of email proficiency.

In this case, the magistrate judge determined that privilege had been waived as to emails created by or shared with non-parties who are not attorneys, namely plaintiffs’ financial advisors and plaintiffs’ son.  Specifically, the court rejected the financial advisors’ assertions that they were “assisting in the transmission of factual information between Plaintiffs and Plaintiffs’ counsel” and found there was “no evidence that their involvement was necessary to ensure the provision of legal advice, or to facilitate the delivery of emails.”  Likewise, the magistrate judge rejected the explanation of plaintiffs’ son that his “technical assistance was necessary for his parents to timely receive the email communications from counsel” because his parents were “not proficient...

Pitney Bowes Gov. Solutions, Inc. v. United States, 2010 WL 3278402 (Fed. Cl. Aug. 19, 2010)

In this post-award bid protest, plaintiff sought spoliation sanctions for defendant’s destruction of relevant documents.  Although most of the documents were deleted and/or destroyed by their original custodians upon the order of the contracting officer, the documents were available for production from backup tapes.  The restored documents, however, all reflected the same author in their metadata, causing plaintiff to doubt their veracity and persist in its request for spoliation sanctions.

To explain the altered metadata, defendant asserted that all of the documents at issue had, at one time, been sent to one employee as attachments to emails for the purpose of assisting her in drafting a related document.  That employee had, in turn, saved each document to her desktop, thus altering the metadata to reflect a common author.  There was no evidence the documents were otherwise altered.

Plaintiff argued that despite the ability to produce the materials requested, spoliation sanctions were nonetheless appropriate where employees had been ordered to delete documents and offered the analogy that if an employee attempted to burn documents but did not successfully burn them all, “sanctions for spoliation would be appropriate even...

Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010)

For failing to preserve the laptops issued to plaintiffs while working for defendant, the court found defendant was “at a minimum” negligent and indicated that an adverse inference would be crafted after all the evidence had been received.  For “prolonged delay” in producing relevant emails the court denied terminating sanctions but ordered monetary sanctions in the amount of $150,000.

This opinion begins:  “Electronic discovery requires litigants to scour disparate data storage mediums and formats for potentially relevant documents.  That undertaking involves dueling considerations:  thoroughness and cost.  This motion illustrated the perils of failing to strike the proper balance.”

Plaintiffs were fired by defendant and thereafter brought suit for breach of contract, among other things.  With the dispute “brewing”, plaintiffs’ counsel sent defendant a preservation letter.  Accordingly, a “Do-Not-Destroy” memorandum was distributed by defendant and the laptops issued to plaintiffs while employed with defendant were secured in storage.  Later, however, following installation of a new email archive service, the laptops were imaged and the data was saved on a file server.

Upon plaintiffs’ request for electronic discovery, defendant discovered it could not locate the laptops’ data.  Rather than revealing...

Siani v. State Univ. of New York at Farmingdale, 2010 WL 3170664 (E.D.N.Y. Aug. 10, 2010)

In this employment discrimination case, the court denied the pro se plaintiff’s motion for spoliation sanctions, despite finding defendants were at least negligent in their preservation efforts, where plaintiff failed to present extrinsic evidence “tending to show that the destroyed emails would have been favorable to his case.” 

Plaintiff alleged that defendants failed to preserve electronic evidence and requested an adverse inference.  Specifically, plaintiff alleged that emails were deleted by both named defendants and non-party employees of the university in violation of their duty to preserve.

Defendants presented evidence that following receipt of notice of plaintiff’s claim, multiple litigation hold notices were disseminated and individuals subject to the hold were repeatedly reminded of their preservation obligations.  The employee in charge of the university’s IT department also backed up the email accounts of the named defendants (employees of the university), but admitted he did not back up his own email account or accounts belonging to any relevant non-parties.  Nor did he suspend the automatic deletion cycle.  Despite the hold, certain named defendants and non-parties admitted that emails were deleted either unintentionally or in the course of routine cleaning. ...

EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010)

The EEOC, on behalf of two claimants, filed claims alleging sexual harassment.  In the course of discovery, defendant sought production of claimants’ internet social networking site (“SNS”) profiles and other communications from claimants’ Facebook and MySpace.com accounts.  Plaintiff resisted.  Following its discussion of the “General Principles Applicable to Discovery of SNS” and the proper scope of discovery in the present case, the court determined that certain content was relevant and ordered plaintiff to produce the relevant information, subject to the guidelines identified by the court.

Defendant sought production of all SNS content on claimants’ online profiles.  Plaintiff objected, arguing the requests were “overbroad, not relevant, unduly burdensome” and would improperly infringe upon claimants' privacy and cause embarrassment.  Defendant claimed the information was proper where plaintiff placed the emotional health of the claimants at issue “beyond that typically encountered with ‘garden variety emotional distress claims’” and that “the nature of the injuries…alleged implicates all of [claimants’] social communications (i.e., all their Facebook and MySpace content).”

Addressing first the discovery of SNS generally, the court acknowledged that the “[d]iscovery of SNS requires the application of basic discovery principles in a novel context”...