Image: Clipart.com
Consider the following hypothetical scenarios:
• the plaintiff claims she was harassed at work, but laments in an online chat room that she has a romantic crush on her boss and is upset that he will not pay attention to her;
• the plaintiff claims he suffers from a debilitating injury that prevents him from working, but on Facebook posts pictures and videos of his post-injury rock-climbing vacation, albeit in a "private" section of his Facebook account that only Facebook "friends" can view; and
• the plaintiff frequently posts daily musings about her employer on a blog called "Ihatemyemplyer.com." She then sues her employer alleging a multitude of claims.
While the focus of electronic discovery is often on the defendant's information technology systems and data sources, litigants should not lose sight of the fact that e-discovery is a two-way street, and obligations apply just as forcefully to plaintiffs -- who often anticipate litigation well in advance of any defendant.
Even in single-plaintiff cases, plaintiffs have baseline duties and responsibilities with respect to e-discovery and face serious consequences for a failure to fulfill them. See, e.g., Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006) (affirming spoliation sanction and dismissal of plaintiff's Americans With Disabilities Act/discrimination lawsuit, because the plaintiff wiped the unallocated space on his laptop's hard drive before turning it over to the defendant's expert for examination); Kvitka v. Puffin Co. LLC, 2009 U.S. Dist. Lexis 11214 (M.D. Pa. Feb. 13, 2009) (dismissing the plaintiff's lawsuit because the plaintiff threw away an "old" laptop that was having technical problems -- although it may have contained recoverable relevant e-mails -- upon purchasing a new one, after the duty to preserve had been triggered); Smith v. Café Asia, 246 F.R.D. 19 (D.D.C. 2007) (court ordered the plaintiff to preserve text messages stored on a cellphone as they might bear on the defendant's claim that the plaintiff invited the alleged sexual harassment forming the basis for her claims).
Moreover, the plaintiffs' refrain that "I don't have any information" simply is no longer true, and even when raised, needs to be thoroughly vetted by counsel.
In the author's experience, plaintiffs counsel often demand that large, data-producing defendants must adhere to strict e-discovery protocols. Yet on the other side of the aisle, plaintiffs' counsel often simply tell their own clients that they must preserve relevant documents, and then rely upon their clients to provide responsive electronic data for discovery. Such steps fall woefully short of what is required of litigants in today's digital world. In each of the hypothetical scenarios outlined above, there is a wealth of electronic information that the plaintiffs -- with the oversight and supervision of their counsel -- must identify, preserve, search, and produce in discovery.
It is now well established that the duty to preserve evidence arises when a party reasonably anticipates litigation. What is sometimes overlooked is that a plaintiff's duty is more often triggered first. Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec. LLC, 685 F. Supp. 2d 456, 466 (S.D.N.Y. 2010) ("A plaintiff's duty is more often triggered before litigation commences, in large part because plaintiffs control the timing of litigation."). This should be no surprise, as plaintiffs themselves know best when they are aggrieved and intend to take action.
Contemporary standards also dictate that once a preservation obligation has been triggered, plaintiffs have an obligation to issue written litigation holds. Pension Comm. at 461-462, 471, 497 (sanctioning 13 plaintiffs for failing to comply with "contemporary" e-discovery standards, including the "well established" duty to issue a written litigation hold once a duty to preserve has been triggered).
Furthermore, just as with defendants, a plaintiff's "discovery obligations do not end with the implementation of a 'litigation hold' -- to the contrary, that's only the beginning." Zubulake v. UBS Warburg LLC (Zubulake IV), 229 F.R.D. 422, 432 (S.D.N.Y. 2004). Plaintiffs counsel, therefore, must "oversee compliance with the litigation hold, monitoring the party's efforts to retain and produce relevant documents." Id.
Plaintiffs counsel also cannot blindly rely upon their clients to self-identify relevant data sources; they need to make a specific inquiry into the types of devices, applications and programs used by a plaintiff so they can then determine whether such data sources contain relevant data. See, e.g., Zubulake IV at 432. ("[A] party and her counsel must make certain that all sources of potentially relevant information are identified and placed 'on hold.' ... [T]o do this, counsel must become fully familiar with her client's document retention policies, as well as the client's data retention architecture. ... [I]t will also involve communicating with the 'key players' in the litigation, in order to understand how they store information."). Compare, also, Fed. R. Civ. P. 26(f) 2006 comment. ("When a case involves discovery of electronically stored information ... [it is] important for counsel to become familiar with those systems before the [Rule 26(f)] conference.")
Moreover, and perhaps most importantly, plaintiffs counsel must do more than simply accept his or her client's bare assertion that he or she does not have relevant electronic information. When dealing with run-of-the-mill key custodians in a corporate context who lack a personal stake in the outcome of a lawsuit, it is reasonable to rely upon individual employees who have appropriate knowledge of the issues in dispute for document-retention decisions. Those custodians, when properly informed and guided by counsel, often are in the best position to determine what is relevant or responsive to a litigation hold or discovery request, because they are familiar with the information they create and receive, as well as how they maintain it. See, e.g., David J. Kessler and Robert D. Owen, "Who Knows Best? Employees Should Be Trusted to Manage Their Own Business Data," Law Tech. News, February 2011.
UNSOUND RELIANCE ON PLAINTIFF
One notable exception is when a custodian has a vested interest in the outcome of the litigation. See, e.g., Adam Cohen and Maureen O'Neil, "When the Custodians Could Be Culprits," N.Y.L.J., Oct. 27, 2008. If an employee is the alleged perpetrator of sexual harassment, it may not be reasonable to solely entrust him or her with making preservation, search and production decisions about his or her own data.
One can think of no more interested party to a lawsuit than a named plaintiff. And most plaintiffs have no legal training or litigation experience. Thus, plaintiffs counsel must be actively involved in all phases of the e-discovery preservation, search and production processes, as merely telling plaintiffs who have no legal training but have a vested self-interest in the outcome of a lawsuit to identify, locate, preserve, search, and/or produce "relevant" data does not comply with contemporary standards. See, e.g., Vagenos v. LDG Financial Servs. LLC, 2009 U.S. Dist. Lexis 121490, *5 (E.D.N.Y. 2009) (plaintiffs attorneys must actively supervise and take responsibility for ensuring that their clients conduct a comprehensive and appropriate search for electronic evidence); Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. Lexis 911, *31 (S.D. Calif. Jan. 7, 2008), vacated in part on other grounds, 2008 U.S. Dist. Lexis 16897 (S.D. Calif. March 5, 2008) ("[F]or the current 'good faith' discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search."). See also Fed. R. Civ. P. 26(g) (requiring counsel to make a reasonable inquiry prior to certifying the completeness of discovery responses).
It is important to be aware of the multitude of sources of data that modern-day plaintiffs possess and control. In addition to home email accounts and personal computers, there are:
• Social media activity and communications. There are approximately 800 million active Facebook users, which represents the third largest country on earth. See www.facebook.com/press/info.php?statistics (last accessed Nov. 30, 2011). It has been estimated that Facebook users collectively spend 7 billion minutes a day on Facebook. Id.
• Cellphone records. There are 4.5 billion cellphone subscriptions worldwide. See www.cellular-news.com/story/29824.php (last accessed Nov. 30, 2011).
• Text messages. It is estimated that 3.5 billion cellphone text messages are sent every day in the United States alone. See www.mobilemarketingllc.com/textmarketing.php (last accessed Nov. 30, 2011).
• Tweets. There are about 2 million "tweets" on Twitter every day. See http://blog.twitter.com. At the end of 2009, there were more than 5 billion total "tweets" on Twitter. See www.nowpublic.com/tech-biz/total-tweets-hit-5-billion-measured-gigatweet.
Courts have held that, under appropriate circumstances, each of those data sources is discoverable in litigation.
The 2006 comment to Fed. R. Civ. P. 26(f) makes clear that parties must discuss "any issues regarding preservation of discoverable information." The 2006 comment to Fed. R. Civ. P. 34(a) also explains:
"Discoverable information often exists in both paper and electronic form. ... The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. Rule 34(a)(1) is expansive and includes any type of information that is stored electronically. ... [It] is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments."
Given those mandates, the following information should be requested of the plaintiffs during the parties' Rule 26(f) conference:
• home or other email accounts, including a listing of specific email addresses;
• devices used for sending or receiving text messages;
• home computers or other machines capable of sending or receiving emails or storing data (e.g., PDAs or cellphones);
• blogs or other online discussion forums.
• Google+, MySpace, Facebook, Twitter, Meetup.com, Orkut, Flickr, Gather.com, Tumblr, Windows Live Spaces, MSN Spaces, or similar accounts;
• LinkedIn, Monster.com, CareerBuilder.com or similar accounts;
• Google Documents, iCloud, Zoho, or similar internet or "cloud"-based services that store documents and data; and
• iCloud, Backblaze, Crashplan, Mozy, or similar internet or "cloud"-based backups of data or devices.
It is no longer acceptable to give short shrift to plaintiffs e-discovery obligations -- they are well established. Likewise, it is beyond dispute that 21st century plaintiffs control abundant sources of electronic data. Thus, in today's digital world, it is critical that litigants, their counsel, and the courts not lose sight of the fact that e-discovery is a two-way street.
Paul Weiner is a shareholder and national e-discovery counsel at Littler Mendelson. He provides guidance to the firm's more than 850 lawyers in 50 offices across the United States, and to clients. He has served as a court-appointed e-discovery special master in the Eastern District of Pennsylvania, and is on the inaugural roll of e-discovery special masters for the Western District of Pennsylvania.
Subscribe to The National Law Journal
-
John Waid
The article discusses a strange dichotomy that has arisen. It is well established, with regard to traditional discovery, that plaintiffs have the same responsibilities that defendants do, yet when it comes to e-Discovery, some people argue they do not. That's plain silly. As the article says, discovery is a two-way street. Plaintiffs should be reviewed with greater scrutiny regarding their preservation duties. They control the litigation and also have "reasonable anticipation" far earlier than defendants do. The cases cited support the idea previously broached in these pages that it is time that identifying when the duty to preserve attaches be put into rules or statutes. The law in this area is all judge-made, and certain judges are stricter than others. Defendants' duties are mostly described in cases where the defendant gets hammered for guessing wrong. There are so many traps for the unwary, and few protections against those who destroy evidence before instituting litigation. As for defendants, in order for the duty to preserve to be triggered, plaintiffs should have to do something affirmative, such as informing the potential defendant in writing they are contemplating suit or intend to litigate. That way, there can be no question the duty has attached and when it did. Plaintiffs, on the other hand, should have a duty as soon as they decide to sue and take steps, such as hiring an attorney or performing a litigation evaluation, to do so. Any fuzziness on plaintiffs' part should be taken as an attempt to confuse the issue and sanctions issued. Greater certainty in this area will also support the twin goal of proper document retention. Everyone knows they shouldn't retain "unnecessary" documents, but defining that term is the trick, isn't it? Better rules regarding what has to be preserved also creates better rules regarding what does not, thus saving businesses great amounts of money. That has to help the economy.
Comments are not moderated. To report offensive comments, click here.
Reader Comments