VOLUME 250—NO. 89

State E-Discovery

Recent Decisions Bring a Range Of Lessons for Clients, Attorneys Since the summer, New York courts have issued a number of decisions that provide real practical guidance to clients, as well as to their attorneys, concerning the preservation, production and use of electronically stored information (ESI). The decisions below highlight certain critical concepts that a client, whether sophisticated or not, and her lawyer need to understand.

Litigation holds to preserve relevant ESI need to be issued and ideally should be in writing. Written communication seeking to preserve ESI should be sent to the producing entity as soon as practicable. A statute or regulation may govern how long ESI is required to be maintained. “Possession, custody or control” is a fluid concept when dealing with ESI. The absence of ESI may be insufficient to demonstrate the requisite prejudice to obtain a spoliation sanction. The more critical missing ESI is to prove a party’s case increases the severity of a potential spoliation sanction. Expectation of privacy to private emails sent through a private email account relating to business is a fact-driven inquiry. A refusal to produce relevant social media postings could result in the imposition of sanctions and an award of attorney’s fees.

Written Litigation Hold Not Required. In Roberts v. Corwin,1 a legal malpractice action, the motion court held that the failure to issue a litigation hold did not warrant the imposition of a spoliation sanction. Quoting from the First Department’s decision in VOOM HD Holdings v. EchoStar Satellite,2 as to standard against which a spoliation charge needs to be analyzed, the court, in denying sanctions, noted that, while the party did not provide the requested emails, they were eventually produced by the nonparty law firm and the party did not have a “history of willful non-compliance” with discovery orders. The court noted that:

To the extent that Greenberg Traurig claims that Mr. Roberts’ failure to produce the emails indicates that there must have been other documents that were not preserved and that it was therefore prejudiced by the destruction of documents with unknowable content, … this contention is unavailing. Although Greenberg Traurig has completed discovery, it makes no showing, through either deposition testimony or other documents, that any documents were destroyed. No formal litigation written hold had been issued, but plaintiff represented that “[s]ince the beginning of [Greenberg Traurig’s] representation of me, I saved emails and electronic documents in a personal folder on my computer, and retained all hard copies of documents in a file. This practice continued through the arbitration and post-arbitration proceedings.” The motion court found that “no authority” was submitted that the litigation hold must always be written and that the form of the litigation hold may not vary with the circumstances. Moreover, Greenberg Traurig makes no showing that an automatic email deletion protocol was in place at Epstein Becker or, as held above, that Mr. Roberts or Epstein Becker deleted any emails or otherwise destroyed any documents. Under these circumstances, a spoliation sanction is not appropriate.

Tape Recording Production Not Controlled by ‘Zubulake’. In Strong v. City of New York,3 the question before the First Department was whether the defendant City should be sanctioned for spoliation for failing to prevent the destruction of a radio recording “that could have either confirmed or called into question its asserted ‘emergency operation’ affirmative defense.”

The court stated: [W]e must determine the proper legal standards to be applied where the destroyed evidentiary material at issue is an audiotape of a radio communication. In particular, we must decide whether this spoliation claim can be fully addressed with the established New York spoliation doctrine, or whether we should apply, in this context, the Zubulake4 standard regarding spoliation of discoverable electronically stored information (ESI) …

In answering the above question, the First Department held that reliance on the federal standard is unnecessary in this context. Zubulake interpreted federal rules and earlier federal case law to adapt those rules to the context of ESI discovery. However, the erasure of, and the obligation to preserve, relevant audiotapes and videotapes, can be, and has been, fully addressed without reference to the federal rules and standards.

Ultimately, the court ruled that the sanction of dismissal of the affirmative defense or preclusion was too severe because the recording was not “key to the proof of plaintiff’s case in chief,” although it could have been relevant to prove or disprove the City’s defense. The First Department noted that “Plaintiffs’ inability to establish whether the missing evidence would have been helpful to them cannot serve to support the City’s opposition to sanctions, since that inability is the City’s fault, not plaintiffs.” As to the appropriate sanction, the First Department held that the motion court’s original order “preventing the City from introducing testimony as to the contents of the audio recording, is appropriate” and “[i]f warranted, an adverse inference charge at trial may be an appropriate additional sanction.”

No Duty to Preserve Lab Report. In Johnson v. Edwards,5 a medical malpractice and wrongful death action, plaintiff alleged that the laboratory failed to timely provide the physician with the results of a blood serum test. Plaintiff sought the production of the “workstation” report, which reflects electronically transmitted test results and where, if there was an abnormal reading, it would be identified in the report. The court found:

[T]here is no indication that Enzo Laboratory had preserved the workstation report and destroyed it in response to this lawsuit or plaintiff’s demand that it be produced, or otherwise acted wilfully to dispose of the report. The only “culpable state of mind” plaintiff can attribute to Enzo Laboratory is negligence in failing to preserve the report under the standard of care dictated by the Department of Health regulation.

The motion court ruled that, under the applicable regulation, the “workstation” report only had to be retained for one year, and noted that the summons and complaint had been served upon the laboratory more than one year after the report was created. As such, the court held:

Since there is no indication that Enzo Laboratory possessed a copy of the workstation report at the time the summons and complaint or demands for discovery were served, the Court does not reach the question of whether defendant breached its obligation to preserve the document under a litigation hold.

Governmental Standing to Object to Production of Emails From Private Account. In Smith v. New York State Office of Atty. Gen.,6 in connection with the New York attorney general’s action against executives of American International Group alleging fraud concerning its publicly reported financial performance, petitioner sought the production through an Article 78 proceeding of, among other things, emails sent to or from then-Attorney General Eliot Spitzer from his private email account. The state argued that any “private email account that Spitzer may have had was not an account to which respondent had access and, therefore, whatever emails were contained therein were not records within its possession.” The trial court ruled that the state had “‘both the responsibility and the obligation to gain access to’ Spitzer’s private email account in order ‘to determine whether the documents contained therein should be disclosed to petitioner in accordance with its FOIL request.’” On appeal, the state argued that it had “no obligation to seek out documents not in its possession and not kept or held “‘by, with or for [it]’” “and that it “presently lacks legal authority to gain access to such private documents.” Without ruling on the merits of the dispute, the Third Department held:

Since at this juncture the object of this proceeding is Spitzer’s private email account(s), and the outcome of this appeal could be a directive to respondent to gain access to and review those private accounts, Spitzer would certainly be “inequitably affected by a judgment in th[is] [proceeding]” and “ought to be [a] part[y] if complete relief is to be accorded between the persons who are parties to [this proceeding]” (CPLR 1001[a]). As such, Spitzer is a necessary party herein.

No Expectation of Privacy to Emails. In Front v. Khalil,7 an employee alleged that his former employer improperly accessed an external hard drive belonging to him which contained his emails and confidential information. The employer did not have a policy prohibiting the use of company computers for personal email activity and it did not inform employees that their computers would be monitored. The employee had exclusive use of his office computer and did not share it with other employees.

The employee alleged violation of the Stored Communications Act (SCA), 18 U.S.C. 2707, and conversion and sought declaratory and injunctive relief including, but not limited to, return of the employee’s emails and confidential information and the preclusion of the use and destruction of such information. The motion court dismissed the causes of action asserted under the SCA because “accessing copies of emails stored by [the employee] on his office computer and downloaded by him to his external hard drive does not constitute a violation of the SCA.”

The court, however, denied dismissal of the employee’s conversion claim where the employee alleged that “without authorization” the employer “accessed his external hard drive and reviewed its contents which contained personal emails, confiscated the external hard drive and exercised dominion and control over that hard drive and the information.” The motion court noted that even if the employee “might not have had a right to retain [his employer’s] documents, he would presumably have a possessory right to his own personal documents.”

Nevertheless, the motion court noted that even if [the employee] may have had some expectation of privacy with respect to his computer, it was not unreasonable for his employer to examine the contents of the external hard drive to determine whether any of [the employer’s] documents were being downloaded by its employee, who had just tendered his resignation. It is undisputed that some emails which were originally sent or received through [the employee’s] personal Gmail account were found, as well as others sent or received through [the employer’s] work email account that were related to work [the employee] was performing for another employer while he was employed by [the employer], at least raising a question of work-related misconduct.

The motion court ultimately held that “under the circumstances, any expectation of privacy [the employee] might otherwise have had that would have justified the suppression of the emails stored on his computer was overcome when he downloaded those emails, along with [employer] documents, to his external hard drive.”

Facebook Production Sanctions. The Fourth Department in Imanverdi v. Popovici8 affirmed a motion court’s decision directing plaintiff to produce her Facebook page for an in camera review. While the ruling is uncontroversial in itself, the Court, due to the apparent lack of legal merit to plaintiff’s position, sent a message by further affirming the motion court’s awarding costs and attorney’s fees to defendant.
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1. Slip Op. 51637(U), 44 Misc. 3d 1210(A), 2013 WL 5575866 (Sup. Co. N.Y. Co. Oct. 3, 2013).
2. 93 A.D.3d 33, 939 N.Y.S.2d 321 (1st Dep’t 2012).
3. __ N.Y.S.2d __, 2013 WL 5612521 (1st Dep’t Oct. 15, 2013).
4. Zubulake v. UBS Warburg, 220 F.RD. 212 (S.D.N.Y. 2003).
5. 971 N.Y.S.2d 848, 2013 N.Y. Slip Op. 23311 (Sup. Ct. King Co. Sept. 18, 2013).
6. __ N.Y.S.2d __, 2013 WL 5640043 (3d Dep’t, Oct. 17, 2013).
7. Index No. 111597/11, NYLJ 1202615799147 (Sup Ct. N.Y. Co. July 9, 2013).
8. 109 A.D.3d 1179, 971 N.Y.S.2d 911 (4th Dep’t 2012).

Reprinted with permission from the 11/5/13 edition of the “PUBLICATION”© 2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.