By Sam Lumpkin

The US District Court for the Western District of North Carolina recently held that even text messages are subject to the duty to preserve electronically stored information (ESI). In Shaffer v. Gaither, the plaintiff asserted claims against her former boss – a US District Attorney – for constructive dismissal based on sexual harassment and creation of a hostile work environment. The plaintiff also added a claim of defamation, based on an allegation that the former boss had falsely spread rumors plaintiff was fired for having a sexual relationship with a married member of the defense bar. Although the plaintiff admitted that the relationship existed, the defamation claim was based on what plaintiff argued was a false reason for her termination.

The defendant contended that plaintiff had sent her paramour text messages about the termination in which she admitted that she was fired because of the relationship. However, the text messages were lost when plaintiff purportedly dropped her cell phone in a bathroom. The court therefore had to address whether, in light of the claims pending at the time the text messages were lost, the plaintiff had failed to preserve relevant ESI.

Under the recent amendments to Federal Rule of Civil Procedure 37(e), the duty to preserve ESI arises when litigation is “reasonably anticipated,” and the loss of ESI is sanctionable if reasonable steps to preserve the ESI are not taken and the information cannot be restored or replaced through additional discovery. Dismissal is not an automatic remedy for spoliation, and some remedies are only available when the spoliating party acted with intent to deprive the opposing party of evidence.

The court in Shaffer found that before the messages were destroyed, plaintiff had threatened litigation and her attorney had discussed the messages with the defendant’s attorney. The messages were therefore clearly relevant to the defamation claim, and both plaintiff and her attorney knew they had a duty to preserve the messages at least five months before the messages were destroyed. The court did not immediately find that the destruction of the plaintiff’s phone was intentional, and because similar evidence might be available through the testimony of various parties who had viewed the texts before they were destroyed, the court did not order dismissal of the defamation claim.

However, the court did provide guidance to potential litigants: “Once it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material, such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one.” Although the plaintiff in Shaffer did not face dismissal due to the circumstances of the case, other litigants may not be so fortunate.


By Jason R. Cashio

Continuing a trend among other courts, a recent ruling from U.S.D.C., Middle District of Louisiana, recognized the discoverability of plaintiff’s social media postings.  Baxter v. Anderson, 2016 U.S. Dist. LEXIS 110687 (M.D. La. Aug. 18, 2016).  In Baxter, Magistrate Judge Bourgeois addressed the discoverability of social media in a recent discovery ruling on August 19, 2016.  The discovery requests calling for production of plaintiff’s social media information, as propounded, were overly broad.  However, the court was still willing to permit the discovery with some limitations. 

Magistrate Judge Bourgeois was not willing to permit unfettered access to a plaintiff’s social media account just because a personal injury lawsuit was filed, which placed plaintiff’s mental and physical conditions at issue.  However, the ruling permitted access to any postings that met one of the following criteria:

  1. Postings by the plaintiff that relate to the accident;
  2. Postings related to any emotional distress or treated received that relate to the accident;
  3. Postings or photographs that relate to alternative potential emotional stressors, or that are inconsistent with the alleged mental injuries;
  4. Postings that relate to physical injuries sustained as a result of the accident and any treatment therefor;
  5. Postings that relate to other, unrelated physical injuries; and,
  6. Postings or photographs that reflect physical capabilities that are inconsistent with the alleged injuries at issue.

Accordingly, the court acknowledged that social media posts/photographs are subject to discovery, which is consistent with numerous other rulings within Louisiana, as well as around the nation.  



By Sam Lumpkin

On December 1, 2015, amendments to the Federal Rules of Civil Procedure took effect in an effort to rein in the scope of federal discovery. Several changes were made to Federal Rule 26 with the goal of reducing the substantial expense and unfairness of overbroad discovery.

Former Rule 26(b)(1) provided that:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense— including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

 The new Rule 26(b)(1) provides as follows:

 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Under the former Rule 26(b)(1), parties were allowed to obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense.” The new rule adds a new statement that discovery must also be “proportional to the needs of the case,” a change that the Advisory Committee on Rules of Civil Procedure described as a “significant improvement” designed to achieve the goal of the Rule 1 – the “just, speedy, and inexpensive determination of every action.” However, the Committee noted that this change is not intended to shift the burden of proving proportionality to the party seeking discovery or to provide a basis for refusing to provide discovery.

In addition to the new requirement of proportionality, the new Rule 26(b)(1) includes several factors that govern a court’s consideration of whether discovery is indeed proportional to the needs of the case. Those factors are: (1) the importance of the issues at stake; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the parties’ resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. Most of these factors were previously contained in Rule 26(b)(2)(C), but have been moved into 26(b)(1) because they have always been a constraint on the scope of discovery. The Advisory Committee stated that this change was intended as an additional prominent emphasis on the requirement of proportionality and to encourage parties to take the factors into account in pursuing discovery. The third factor – the parties’ relative access to relevant information – is a new addition, and was added in order to recognize that in some cases the discovery burden will necessarily be greater on one party than on another. The Committee rearranged the order of the factors in the new rule, moving the “importance of the issues at stake” ahead of “the amount in controversy” in order to avoid any possible implication that the amount in controversy is the primary concern in determining proportionality.

In a change related to the new emphasis on proportionality, the new rule eliminates the broad statement that relevant information “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence,” and substitutes the more straightforward language that “Information within this scope of discovery need not be admissible in evidence to be discoverable.” The Committee noted that the central principle of this portion of the rule is simply that information within the allowed scope of discovery is discoverable, even if it is not in a form admissible in evidence – it is “merely a ban on admissibility-based refusals to provide relevant discovery.” However, although the “reasonably calculated” section in the previous rule “has never been intended to define the scope of discovery,” it was interpreted by many parties to mean that the scope of discovery must merely be “reasonably calculated to lead to the discovery of admissible evidence.” As a result, the “reasonably calculated” term has in many cases “swallowed” any other limitations on the scope of discovery. The new rule therefore eliminates the “reasonably calculated” language, and further removes any doubt that discovery must be limited and proportional to the needs of the case.

Finally, the new rule further removes the reference that discoverable matters include “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” The Committee determined that this was simply “excess language,” but included it in the official Committee Notes and emphasized that these subjects would remain discoverable if they satisfied the considerations in the revised rule.

The new version of Rule 26, while not creating a new basis for refusing to respond to discovery, does allow parties to defend against discovery requests that would have been overbroad under the previous rule but may have been allowed by the courts. If the changes are successful, recipients of discovery will be better able to obtain protection from the substantial expense of responding to overbroad discovery requests.


By Jason Cashio

Is a defendant entitled to rummage through the desk drawers and closets in a plaintiff’s home as part of discovery in a civil case? Most would agree this is beyond the scope of standard discovery.

A United States District Court Judge used this logic to limit the discovery of plaintiff’s social media accounts when the defendant sought complete access to plaintiff’s entire social media records. In Ogden v. All-State Career School, –F.R.D.–, 2014 WL 1646934 (W.D. Pa. 2014), an employee sued his employer for subjecting him to a hostile work environment as well as retaliation, in violation of Title VII. Plaintiff’s employer moved to compel production of the employee’s entire social media records, demanding access to or production of complete copies of all social media accounts. Although courts have permitted discovery of social media, such as Facebook records, when it is reasonably calculated to lead to the discovery of admissible evidence, the court noted that “it is the nature of the claims and defenses and not merely the form of medium that define the bounds of relevancy and courts have declined to permit far-roving discovery into social media accounts where the inquest does not meet the basic tenants of Rule 26.” The court concluded that ordering plaintiff to permit access to or produce complete copies of his social media accounts “would permit defendant to cast too wide a net and sanction an inquiry into scores of quasi-personal information that would be irrelevant and non-discoverable. Defendant is no more entitled to such unfettered access to plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in plaintiff’s home.” As such, parties are not entitled to “unfettered access” to social media accounts. Rather, the proper method for obtaining relevant information is to serve limited requests for production for information related to the claims or defenses involved in the case.

By Sam O. Lumpkin


Rule 37(e) of the Federal Rules of Civil Procedure, also known as the “Safe Harbor Rule” of electronic discovery, governs the consequences of a party’s failure to preserve discoverable Electronically Stored Information (ESI). Currently, Rule 37(e) provides:

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

While intended to protect parties who implement timely litigation holds, but who nevertheless may have deleted discoverable ESI in the regular course of business, the rule in its current form has provided little guidance to the courts applying it. This has resulted in inconsistent application across the circuits and varying standards for when sanctions are appropriate under the rule. As a result, in September 2014 the Judicial Conference Committee on Rules of Practice and Procedure unanimously approved an entirely rewritten version of Rule 37(e) several years in the making that will, if approved by the Supreme Court and Congress, unify the approach courts take to sanctioning the loss of ESI. The proposed rule now reads:

Rule 37(e) Failure to Preserve Electronically Stored Information.

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may:

 (1) upon finding prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; or

 (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

 (A) presume that the lost information was unfavorable to the party;

 (B) instruct the jury that it may or must presume the information was unfavorable to the party; or

 (C) dismiss the action or enter a default judgment.

Rather than providing specific details regarding the preservation obligation itself, the proposed rule empowers courts to take remedial measures when a party loses ESI because the party “failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery.” According to the September 2014 Report of the Judicial Conference Committee on Rules of Practice and Procedure, this language is intended to retain the duty to preserve “that has been uniformly established by case law: the duty arises when litigation is reasonably anticipated.” As a result, the proposed rule does not impose strict liability for failure to produce ESI—the rule only applies when a party fails to take “reasonable steps” to preserve the ESI once litigation is reasonably anticipated. Even if the opposing party is prejudiced, as long as “reasonable steps” are taken the rule does not permit sanctions. The remedial measures available to a court are split into two sections.

Rule 37(e)(1) provides that the court, “upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.” This permits a court to take measures regardless of whether the loss of ESI is the party’s fault, and while it preserves broad trial court discretion to take steps to cure prejudice, it strictly limits the scope of the court’s action to measures that will cure the prejudice.

Rule 37(e)(2) resolves the circuit split on when a court may deliver an adverse inference jury instruction for loss of ESI. Under the current rule, some circuits have held that an adverse jury instruction for loss of ESI is justifiable only upon a showing of bad faith by the losing party, whereas the Second Circuit in particular required only a showing of negligence. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2002). The consequence under the Second Circuit’s rule was essentially that if a party was found to have lost ESI not through routine, good-faith operation of an ESI system—essentially a finding of negligence—they could almost automatically be subject to an adverse inference instruction. If the safe harbor was not available, a party was immediately at risk of receiving the full weight of sanctions. The danger of severe sanctions upon a finding of mere negligence resulted in a tendency to over-preserve ESI at significant cost to parties to civil litigation. The proposed rule, however, permits adverse inference instructions, dismissal, or default judgment “only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation.” Notably, this section of the proposed rule does not require actual prejudice to the opposing party—intent alone is sanctionable by adverse instruction.

The proposed changes to Rule 37(e) have the potential to make a real change in the frequency and severity of sanctions for loss of ESI. Whereas current Rule 37(e) was intended as a safe harbor but has rarely been used as such, the new rule authorizes limited court action only when reasonable steps were not taken to preserve ESI and the loss of ESI cannot be cured by additional discovery. As a result, a party that has lost discoverable ESI can always defend itself by arguing: 1) that it took “reasonable steps” to preserve the ESI; and 2) that the loss may still be cured through additional discovery. In addition to these defenses, under Rule 37(e)(1) a party may also argue: 3) that the opposing party has not been prejudiced; and 4) that the requested remedy will not cure the asserted prejudice.

Only one of these possible defenses relates to the conduct of a party before it loses ESI: taking “reasonable steps” to preserve discoverable ESI. While the proposed rule does not define “reasonable steps,” jurisprudence on the duty to preserve generally refuses to apply a per se test to what is reasonable. See Automated Solutions v. Paragon Data Systems, 756 F.3d 506, 516-17 (6th Cir. 2014); Chin v. Port Authority, 685 F.3d 135, 162 (2nd Cir. 2012). The Rules Committee has also suggested that a factor in evaluating the reasonableness of preservation efforts is the proportionality of those efforts—in other words, whether the steps taken to preserve ESI are proportional to the needs of the individual case.



By Jason R. Cashio

The United States District Court, Northern District of California, offered some additional guidance regarding what a party must do, and by when, in terms of its preservation obligation. Commenting that Judge Scheindlin “woke up the legal world from its electronic discovery slumber in the Zubulake series,” and that most parties have gotten the basic message concerning when the duty to preserve begins, the court explained that exactly what a party must do to preserve and by when is less understood.

The issue before the court was whether the destruction of evidence on a former employee’s computer was sanctionable conduct. A matter of days before the plaintiff filed the lawsuit in AMC Technology, LLC, v. Cisco Systems, Inc., 2013 WL 3733390 (N.D. Cal.2013), a project manager for the defendant retired. Approximately one month later, the defendant wiped the project manager’s computer pursuant to its records retention policy. When the defendant could not produce the data from the project manager’s computer during the course of discovery, plaintiff filed a motion for sanctions.

The court found that the project manager’s involvement with the matter in dispute was merely tangential. Although the company knew of the lawsuit before destroying the computer, the court found the company could not have known that the project manager’s data would be relevant because he was not a key player. The court then reiterated sound advice, explaining that “requiring a litigant to preserve all documents, regardless of their relevance, would cripple parties who are often involved in litigation or are under the threat of litigation.”


By Lyn S. Savoie

On December 12, 2012, the U.S. Department of Health Human Services (HHS) launched a new website focused on the use of mobile devices in relation to health information privacy and security.  The website is entitled Mobile Devices: Know the RISKS. Take the STEPS. PROTECT and SECURE Health Information.  The website provides educational materials, such as videos and fact sheets, aimed at promoting best practices for safeguarding protected health information on mobile devices like laptops, tablets, and smartphones. 

Included on the website is the following five-step process for addressing mobile devices within a healthcare organization:

  1. Decide appropriate use for mobile devices within the organization;
  2. Assess the risks associated with mobile devices;
  3. Identify a mobile device risk management strategy;
  4. Develop, document, and implement mobile device policies; and
  5. Train the workforce on the policies.

Additionally, the website contains a number of videos covering the basics of mobile device security.  The videos address subjects such as mobile devices in the organization’s risk assessment, preparing for and responding to the theft of a mobile device, and appropriate safeguards when using a mobile device to handle health information on a public Wi-Fi network.

Based upon the information on the website, as well as recent enforcement actions related to mobile device issues (for example, the Massachusetts Eye and Ear Infirmary (MEEI) Resolution Agreement1), health care providers who are Covered Entities under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) should consider taking appropriate steps regarding the use of mobile devices, such as performing an appropriate risk assessment, developing policies and procedures addressing the use of mobile devices, and providing adequate training to workforce members on the use of such devices.  This new website can serve as a helpful tool when taking such actions.


1 In September 2012, MEEI paid $1.5 million to HHS to settle potential violations of the HIPAA Security Rule following the submission of a breach report by MEEI related to the theft of an unencrypted personal laptop containing electronic protected health information (ePHI).  An investigation conducted by the HHS Office for Civil Rights indicated that MEEI failed to take necessary steps to comply with Security Rule requirements, including conducting a thorough analysis of the risk to confidentiality of ePHI maintained on portable devices and adopting policies and procedures to restrict access to ePHI to authorized users of portable devices.  The MEEI Resolution Agreement and accompanying Corrective Action Plan between HHS and MEEI are available here


By Jason R. Cashio

In Apple Inc. v. Samsung, et al., the United States District Court for the Northern District of California reiterated the importance of preserving electronically stored information.  The court held that Samsung’s failure to disable its auto-delete function for employee e-mails demonstrated a conscious disregard for its obligation to preserve evidence.  The court sanctioned Samsung and held that Apple was entitled to an adverse inference instruction, albeit rebuttable, that the evidence lost was both relevant and favorable to plaintiff.  Most interesting was the court’s discussion of an employer’s duty to confirm that its employees comply with a legal hold issued in the face of litigation.  The court was critical of Samsung, and explained that Samsung, “in effect . . . kept the shredder on long after it should have known about this litigation, and simply trusted its custodial employees to save relevant evidence from it.”

For a review of the court’s order, see the order here.

By Esteban Herrera, Jr.

The March 22, 2012 Report and Recommendation from a federal magistrate judge in the case of Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 2012 WL 1067664 (W.D.N.Y.) is a good reminder to everyone about taking evidence preservation obligations seriously.  In the case, the magistrate judge recommended that the plaintiff’s motion for sanctions on the grounds of spoliation be granted because:

  • There was no evidence that the defendant had instituted a litigation hold once the duty to preserve was triggered.
  • The defendant’s general counsel instructed one employee “to gather relevant evidence.” But, the defendant made no written record nor presented evidence as to how relevancy was determined and how the appropriate custodians were identified.
  • The defendant made no record of the custodians that provided documents in the process.
  • There was no evidence that the defendant “took steps to confirm the adequacy of its collection efforts.”
  • After learning that potentially relevant e-mails were not available from the company’s backup tapes, the defendant took no action to preserve the computers of two key employees.

The magistrate judge recommended against severe sanctions (the striking of defenses or adverse inferences) because the evidence failed to show the plaintiff was prejudiced by the loss email communications.  But, the court awarded monetary sanctions in the form of attorney’s fees and costs.  Still, the gross negligence finding, based in part on the company’s failure to issue a written litigation hold (or prove otherwise that a hold was issued), is not surprising in light of the case law.   Hopefully, the reader avoids learning about these sanction lessons the hard way.

By Esteban Herrera, Jr.

Several cases over the last few years have dealt with whether litigation hold letters are discoverable. As a review, a litigation hold is a written communication (email, memo, letter) usually from a party’s lawyer or legal department to the party’s employees explaining the existence of a claim or lawsuit and requesting that certain information be preserved. Because the litigation hold usually is prepared by an attorney and sent to the attorney’s client and usually contains the attorney’s thoughts about the nature of the matter and the documents or information that need to be preserved, courts typically find that a litigation hold is privileged and not discoverable. But, as you can see from the caveats in the preceding sentence, if some and/or all of those conditions are not present, a court may find that the hold is NOT privileged. And, the burden on establishing the privilege will be on the party who wants to prevent the litigation hold from being discovered. So, careful thought should go into how a litigation hold communication is worded.

Nevertheless, although a litigation hold itself may be privileged, many courts have found that the facts concerning what a party and its employees are doing to preserve and collect potentially responsive and/or relevant information generally is discoverable. Courts have found that the following facts generally are discoverable:

  • The categories of electronic stored information or documents employees were instructed to preserve and collect;
  • The specific actions employees were instructed to undertake to preserve and collect;
  • When was the litigation hold issued or given; and
  • To whom was the litigation hold issued or given.

Increasingly, document and/or ESI preservation and collection efforts are becoming a large part of lawsuits. Careful effort and attention should be spent on these efforts to avoid having them blow out of control.

Potentially useful citations: Cannata v. Wyndham Worldwide Corp., 2011 WL 5598306 (D. Nev. 2011); Hofmann v. Aspen Dental Management, Inc., 2011 WL 1258053 (S.D. Ind. 2011); Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. 2009); In re eBay Seller Antitrust Litigation, 2007 WL 2852364 (N.D. Cal. 2007)