Getting your Hands on the Other Teams

PlaybookStrategies for getting the discovery you need

PRESENTED BY: MARK M. O’MARA

LITIGATION HOLDS

What are they and how do we do them?

ESI Letter

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003)

“[A]nyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an

adversary.”

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (emphasis added)

“Once a party reasonably anticipates litigation, it must suspend its routine document

retention/destruction policy and put in place a ‘litigation hold’ to

ensure the preservation of relevant documents.”

China Ocean Shipping (Group)Co. v. Simone Metals Inc., 97 C 2694, 1999 WL 966443 (N.D. Ill. 1999)

“The duty to preserve evidence includes any relevant evidence over which the non-preserving entity had control and reasonably knew or could reasonably foresee was material to a potential legal action.”

The most common reason for sanctions of ESI is the failure to preserve the ESI upon request.

Once served with an ESI litigation hold letter, promptly communicate

with the client and all potential storage sites of the client’s

information.

1. Plan ahead; have a timeline and meet with ESI custodians early. Identify the custodians’ understanding and comfort with the computer systems.

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (SDNY 2010).

2. The discovery should always be supervised by attorneys and attorneys should be on the ground

helping clients implement preservation techniques.

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (SDNY 2010).

3. A written litigation hold notice should be issued as

soon as the duty to preserve arises. You may need to

suspend normal destruction policies.

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (SDNY 2010).

4. The failure to collect records from all employees

may constitute negligence. It is important to be over-inclusive in protecting

information.Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (SDNY 2010).

5. While all backup tapes do not need to be preserved, if they are the only source of relevant information they

must be.

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (SDNY 2010).

6. Always follow up on written instructions and all

preservation activities. Should a mistake or error occur, be

candid and properly correct it to the best of your ability.

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (SDNY 2010).

1.REQUESTS FOR ADMISSIONS – Get creative!

2. SPECIFIC DEMANDS – Ask for what you want.

3. THIRD PARTY SUBPOENAS – Ask who has the discovery, and get it.

Hidden Technology: The Drama Over A JPEG

In the Zimmerman case, the defense presented the jury withphotograph of George Zimmerman’s injuries taken by a policeofficer on the night of February 26, 2012–only moments afterthe shooting. It felt like physical evidence, but it was, in fact,digital discovery.

“The lesson here is that important discovery

should never be taken at face

value.”

Social Media EvidenceComments, posts, and photographs onsocial media are electronic documents andthey may be discoverable. How exactly togo about collecting that discovery,however, is not immediately clear.

Be very careful how you advise your client to handle their social media presence.

“I <3 Hot Moms”

Lester v. Allied Concrete Co., No. CL08-150 (Va. Cir. Ct. Sept. 01, 2011)

http://www.courts.state.va.us/opinions/opnscvwp/1120074.pdfhttp://www.vsb.org/docs/Murray-092513.pdf

CF1

Slide 21

CF1 Caitlin Frenkel, 2/6/2017

Even the simple act of changing a

profile picture has been

considered spoliation.

Katiroll Company, Inc. v. Kati Roll and Platters, Inc., No. 10-3620 (GEB) (D.N.J. Aug. 3, 2011).

LinkedInMost people who have been involved in the professional world in the last 5years will have a LinkedIn profile.

One thing to be wary of when researching on LinkedIn is that, by default,users can see who has viewed their profile. The American Bar AssociationFormal Opinion 466 very clearly states that this type of notification in notconsidered “contact”; however, be aware that a party or potential witnessmay become aware of the inquiry.

Facebook

There are 1.86 billon Facebook account holders.

If you are not a “friend” do not become one.

Twitter

Twitter has 500 million users. There are varied terms of use inform their

clients that it is all completely public.

Other Networks

Instagram, Tumblr, Pinterest, MySpace, Google+, Blogger, YouTube: these areother networks where you may find information about a party or potential witness.

A few more search sites

Searching for Social Media Discovery

As a rule of thumb, judges despise “fishing expeditions,” and any overbroad or over-

intrusive requests will likely be shot down. The more specific and relevant the request is, the

more likely it is to be granted.

What if a witness to a case is a “friend” of a litigant and willing toshare their access to the litigant’s posts? In the case of US v.Meregildo, the New York Southern District decided that lawenforcement did not violate the defendant’s Fourth Amendmentrights when it gained probable cause to get a warrant after viewingthe defendant’s social media posts through the account of acooperative witness.

http://nysd.uscourts.gov/cases/show.php?db=special&id=204

“I see no principled reason to articulate different standards for

the discoverability of communications through email,

text message or social media platforms.”

Robinson v. Jones, Lang, Lasalle, AMS, 2012 U.S. District Lexis 123833 (District of Oregon 2012)

Material posted on a “private” Facebook page, that is accessible to a selected group of recipients but not available for viewing by

the general public, is generally not privileged, nor is it protected by common

law or civil law notions of privacy.Nevertheless, the Defendant does not have a

generalized right to rummage at will through information that Plaintiff has

limited from public view.

Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012)

“It is reasonable to expect severe emotional or mental injury to manifest itself in some SNS

(Social Networking Site) content, and an examination of that content might reveal

whether onset occurred, when, and the degree of distress. Further, information that

evidences other stressors that could have produced the alleged emotional distress is

also relevant. Thus, the court determines that some SNS discovery is appropriate here.”

E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 435 (S.D. Ind. 2010)

“With these considerations in mind, the court determines that the appropriate scope of relevance

is any profiles, postings, or messages (including status updates, wall comments, causes joined,

groups joined, activity streams, blog entries) and SNS applications for claimants… that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate

to events that could reasonably be expected to produce a significant emotion, feeling, or mental

state.”

E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 435 (S.D. Ind. 2010)

Disclosing Social Media Discovery Judges have required litigants to provide login credentials. Largent v.

Reed, No. 2009-1823 (Pa. C.C.P. Nov. 8, 2011).

While others have found such access unreasonable. Trail v. Lesko, No.GD-10-017249 (Pa. C.C.P. July 3, 2012).

Some judges have agreed to in-camera review of social media sites.

One judge even “friended” a litigant to look for relevant information.Barnes v. CUS Nashville, LLC, No. 3:09-cv-00764, 2011 U.S. Dist.LEXIS 143892 (M.D. Tenn. June 3, 2010).

Perhaps the most sensible solution is an attorney’s eyes only approach.Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375 (D. Nev. June 20,2012).

Authenticating Social Media DiscoveryOnce you’ve found information on social media, you have to understand thatit is not automatically self- authenticating.

Consider the case of the self-described “pothead princess” who tweeted “2drunk 2 care” shortly before killing two people in a head on collision.

http://www.nydailynews.com/news/national/pothead-princess-tweeted-2- drunk-2-care-fatal-drunken-wreck-arrested-booked-5-months-article- 1.1749462.

Which can get you in more trouble?

How About These?

A lawyer who chooses to use Devices that contain Storage Media such as

PrintersCopiers

ScannersFacsimile machines

must take reasonable steps to ensure that client confidentiality is maintained and that the Device is sanitized before disposition, including:

(1)identification of the potential threat to confidentiality along with the development and implementation of policies to address the potential threat to confidentiality

(2)inventory of the Devices that contain Hard Drives or other Storage Media;

(3)supervision of nonlawyers to obtain adequate assurances that confidentiality will be maintained

(4)responsibility for sanitization of the Device by requiring meaningful assurances from the vendor at the intake of the Device and confirmation or certification of the sanitization at the disposition of the Device.

Florida Bar Ethics Opinion 10-2