e-Discovery Docket Sheet

During an ongoing discovery dispute in an employment-discrimination case, the employee moved for sanctions against the employer for failing to produce backup tapes containing relevant e-mails and for failing to produce other relevant documents in a timely manner. See, Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In this latest motion, the employee contended that the employer, who recovered some of the deleted relevant e-mails, prejudiced her case by producing recovered e-mails long after the initial document requests. Furthermore, some of the e-mails were never produced, including an e-mail that pertained to a relevant conversation about the employee. As such, the employee requested sanctions in the form of an adverse-inference jury instruction. Determining that the employer had willfully deleted relevant e-mails despite contrary court orders, the court granted the motion for sanctions and also ordered the employer to pay costs. The court further noted that the defense counsel was partly to blame for the document destruction because it had failed in its duty to locate, preserve and produce the relevant information in a timely way. In addressing the role of counsel in litigation generally, the court stated that “[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.” Specifically, the court concluded that attorneys are obligated to ensure all relevant documents are discovered, retained and produced. Additionally, the court declared that litigators must guarantee that identified relevant documents are preserved by placing a “litigation hold” on the documents, communicating the need to preserve them and arranging for safeguarding of relevant archival media. Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004).

In a case brought by the government involving smoking and health-related issues, the government filed a motion for evidentiary and monetary sanctions against the defendants for spoliation of evidence. Although the court had ordered preservation of all potentially relevant documents, the defendants continued to delete e-mail when it became 60 days old, on a monthly system-wide basis, for 2 years after the court order. Even after learning about their inadequate document-retention policy, the defendants continued to destroy documents for several months, including relevant e-mails from at least 11 company supervisors and officers. In addition, the defendants failed to notify the court about the situation until 4 months after they found out about it. Finding that a significant number of e-mails had been permanently destroyed, the court declared that “it is astounding that employees at the highest corporate level in Philip Morris, with significant responsibilities pertaining to issues in this lawsuit, failed to follow [the] Order … which, if followed, would have ensured the preservation of those emails which have been irretrievably lost.” Granting the government's motion for sanctions, the court stated that it will preclude the defendants from calling a key employee who failed to follow the retention policy as a fact or expert witness at trial. The court also ordered the defendants to pay costs relating to the spoliation as well as $2.75 million in monetary sanctions. United States v. Philip Morris USA Inc. f/k/a Philip Morris Inc., 2004 WL 1627252 (D.D.C. July 21, 2004).

The defendant appealed a conviction for obstructing a Securities and Exchange Commission (SEC) investigation by destroying a massive amount of documents, including e-mails. Among other things, the defendant argued that the district court improperly allowed the prosecutor to make inappropriate and harmful comments about an e-mail during opening and closing statements. In the opening statement, the prosecutor erroneously declared that a copy of the e-mail did not exist in evidence because the defendant had deleted it. The defendant, who had in fact produced an undeleted copy, objected to the argument as misleading. In response, the trial court instructed the jury that even though a copy had been deleted, an undeleted copy existed and had been given to the SEC. During closing arguments, the prosecutor argued that even if an undeleted copy existed, one deletion of the e-mail was significant because the SEC clearly would have wanted to see the document. After closing arguments, the defendant moved for a mistrial, declaring that the prosecutor had again misstated the evidence. In denying the motion, the trial court determined that even if the opening comments were misleading, they were cleared up by the court's instruction to the jury. Furthermore, “the rebuttal comments highlighted the e-mail's importance, asserted that the SEC would want to see it, and noted that at least one copy of it was deleted.” As such, the appellate court determined that the trial court made no error, and affirmed the obstruction-of-justice conviction. United States v. Arthur Andersen, LLP, 2004 WL 1344957 (5th Cir. June 16, 2004).

Asserting a copyright-infringement claim against the operators of a pornographic Web site, the plaintiff sought spoliation sanctions against the defendant for failing to produce all e-mails relating to the Web site. In response, the defendants admitted that they failed to retain four months' worth of e-mails sent and received after the plaintiff filed the lawsuit. The defendants argued that no effort was made to print or save the e-mails before the computer server automatically destroyed them, because such e-mails were not preserved in the ordinary course of business. The court rejected this argument and sanctioned the defendants by granting an adverse-inference jury instruction, stating that “the very fact that the emails are missing leaves us in the realm of speculation as to what they contained and in what manner they might have assisted plaintiff in litigating claims.” MasterCard Int'l, Inc. v. Moulton, 2004 WL 1393992 (S.D.N.Y. June 22, 2004).

In an employment-discrimination lawsuit, a former employee alleged that she was wrongfully discharged and sought unemployment benefits. In response to the employee's request for benefits, the defendant produced an e-mail at the benefits hearing. The e-mail, which was from the company's human resources vice president to legal counsel, stated the reasons for the employee's termination. After the e-mail was produced at the hearing, the employee requested production of any other related documents for use in her wrongful-discharge claim. Stating that the e-mail was privileged and had been produced inadvertently, the defendant moved for a protective order. The trial court granted the protective order and instructed the employee to return the e-mail. The appellate court reversed, stating the company waived any privilege claims when it “voluntarily divulged” the e-mail. Hollingsworth v. Time Warner Cable, 2004 WL 1363847 (Ohio App. June 18, 2004).

Zubulake Court Sanctions Defendant
For Scrapping e-Mail Evidence

During an ongoing discovery dispute in an employment-discrimination case, the employee moved for sanctions against the employer for failing to produce backup tapes containing relevant e-mails and for failing to produce other relevant documents in a timely manner. See , Zubulake v. UBS Warburg , 220 F.R.D. 212 (S.D.N.Y. 2003). In this latest motion, the employee contended that the employer, who recovered some of the deleted relevant e-mails, prejudiced her case by producing recovered e-mails long after the initial document requests. Furthermore, some of the e-mails were never produced, including an e-mail that pertained to a relevant conversation about the employee. As such, the employee requested sanctions in the form of an adverse-inference jury instruction. Determining that the employer had willfully deleted relevant e-mails despite contrary court orders, the court granted the motion for sanctions and also ordered the employer to pay costs. The court further noted that the defense counsel was partly to blame for the document destruction because it had failed in its duty to locate, preserve and produce the relevant information in a timely way. In addressing the role of counsel in litigation generally, the court stated that “[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.” Specifically, the court concluded that attorneys are obligated to ensure all relevant documents are discovered, retained and produced. Additionally, the court declared that litigators must guarantee that identified relevant documents are preserved by placing a “litigation hold” on the documents, communicating the need to preserve them and arranging for safeguarding of relevant archival media. Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004).

In a case brought by the government involving smoking and health-related issues, the government filed a motion for evidentiary and monetary sanctions against the defendants for spoliation of evidence. Although the court had ordered preservation of all potentially relevant documents, the defendants continued to delete e-mail when it became 60 days old, on a monthly system-wide basis, for 2 years after the court order. Even after learning about their inadequate document-retention policy, the defendants continued to destroy documents for several months, including relevant e-mails from at least 11 company supervisors and officers. In addition, the defendants failed to notify the court about the situation until 4 months after they found out about it. Finding that a significant number of e-mails had been permanently destroyed, the court declared that “it is astounding that employees at the highest corporate level in Philip Morris, with significant responsibilities pertaining to issues in this lawsuit, failed to follow [the] Order … which, if followed, would have ensured the preservation of those emails which have been irretrievably lost.” Granting the government's motion for sanctions, the court stated that it will preclude the defendants from calling a key employee who failed to follow the retention policy as a fact or expert witness at trial. The court also ordered the defendants to pay costs relating to the spoliation as well as $2.75 million in monetary sanctions. United States v. Philip Morris USA Inc. f/k/a Philip Morris Inc., 2004 WL 1627252 (D.D.C. July 21, 2004).

The defendant appealed a conviction for obstructing a Securities and Exchange Commission (SEC) investigation by destroying a massive amount of documents, including e-mails. Among other things, the defendant argued that the district court improperly allowed the prosecutor to make inappropriate and harmful comments about an e-mail during opening and closing statements. In the opening statement, the prosecutor erroneously declared that a copy of the e-mail did not exist in evidence because the defendant had deleted it. The defendant, who had in fact produced an undeleted copy, objected to the argument as misleading. In response, the trial court instructed the jury that even though a copy had been deleted, an undeleted copy existed and had been given to the SEC. During closing arguments, the prosecutor argued that even if an undeleted copy existed, one deletion of the e-mail was significant because the SEC clearly would have wanted to see the document. After closing arguments, the defendant moved for a mistrial, declaring that the prosecutor had again misstated the evidence. In denying the motion, the trial court determined that even if the opening comments were misleading, they were cleared up by the court's instruction to the jury. Furthermore, “the rebuttal comments highlighted the e-mail's importance, asserted that the SEC would want to see it, and noted that at least one copy of it was deleted.” As such, the appellate court determined that the trial court made no error, and affirmed the obstruction-of-justice conviction. United States v. Arthur Andersen, LLP, 2004 WL 1344957 (5th Cir. June 16, 2004).

Asserting a copyright-infringement claim against the operators of a pornographic Web site, the plaintiff sought spoliation sanctions against the defendant for failing to produce all e-mails relating to the Web site. In response, the defendants admitted that they failed to retain four months' worth of e-mails sent and received after the plaintiff filed the lawsuit. The defendants argued that no effort was made to print or save the e-mails before the computer server automatically destroyed them, because such e-mails were not preserved in the ordinary course of business. The court rejected this argument and sanctioned the defendants by granting an adverse-inference jury instruction, stating that “the very fact that the emails are missing leaves us in the realm of speculation as to what they contained and in what manner they might have assisted plaintiff in litigating claims.” MasterCard Int'l, Inc. v. Moulton, 2004 WL 1393992 (S.D.N.Y. June 22, 2004).

In an employment-discrimination lawsuit, a former employee alleged that she was wrongfully discharged and sought unemployment benefits. In response to the employee's request for benefits, the defendant produced an e-mail at the benefits hearing. The e-mail, which was from the company's human resources vice president to legal counsel, stated the reasons for the employee's termination. After the e-mail was produced at the hearing, the employee requested production of any other related documents for use in her wrongful-discharge claim. Stating that the e-mail was privileged and had been produced inadvertently, the defendant moved for a protective order. The trial court granted the protective order and instructed the employee to return the e-mail. The appellate court reversed, stating the company waived any privilege claims when it “voluntarily divulged” the e-mail. Hollingsworth v. Time Warner Cable, 2004 WL 1363847 (Ohio App. June 18, 2004).