Tag: discovery

February 13, 2009 Copyright, Litigation

RIAA’s need for discovery was not so urgent

Elektra Entertainment Group, Inc. v. Does 1-6, No. 08-444 (S.D. Ohio February 5, 2009)

The RIAA’s de-emphasis on lawsuits against individual file sharers may underlie the result in a recent case from a federal court in Ohio. The music industry plaintiffs had sought expedited discovery so they could learn which members in a household (either the mother or one of the children) was responsible for illegally trading files. Finding that the need for the discovery was not urgent, the court denied the record companies’ request.

Electra Entertainment and others sued one David Licata in 2007, accusing him of infringing the copyright in sound recordings back in 2005. Licata claimed he did not know who was responsible for trading the files (though AOL had identified Licata’s account as corresponding with the offending IP address). During discovery in that case, however, Licata identified the other members of his household.

Instead of suing one or more of these other members of the household, the recording industry plaintiffs filed another John Doe suit, leaving it to later to find out the identities of the particular individuals who were allegedly infringing. But instead of acting diligently to figure out who to go after, the record companies did nothing for about five months.

Last November, the court ordered the plaintiffs to show cause why the case should not be dismissed, since the defendants had not been served with process (after all, the record companies claimed they didn’t know who to sue). In response to that order, the plaintiffs sought leave under Fed. R. Civ. P. 26(d) to take expedited discovery. The court denied the motion, holding that there was not good cause shown to accelerate the normal discovery schedule.

The court looked to the long period of time — 152 days — that had passed from the suit being filed to the request for expedited discovery. That duration, coupled with the fact that the plaintiffs already knew the names of the other family members who were likely the proper defendants, undercut any argument that the need for discovery was urgent. Without such urgency (which usually exists when there is a risk that evidence will be destroyed or someone will be injured), there was no good cause to allow the depositions of the mother and children prior to the Fed. R. Civ. P. 26(f) conference.

[Hat tip to Ray Beckerman for alerting me to this decision.]

Photo courtesy Flickr user swanksalot under this Creative Commons license.

November 20, 2007 Electronic Discovery, Litigation

No spoliation sanctions for deletion of email where CD copies had been made

Bakhtiari v. Lutz, — F.3d —-, 2007 WL 3377215 (8th Cir. November 15, 2007)

Not too many e-discovery (or any type of discovery) disputes get to the federal courts of appeal. But we have a recent decision from the Eighth Circuit that addressed the topic of “spoliation” when emails had been deleted.

A party in litigation is guilty of spoliation when the court finds that he or she “intentionally destroyed evidence with a desire to suppress the truth.” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). Plaintiff Bakhtiari filed suit against the University of Missouri-Rolla and a number of administrators there, alleging Title VII and civil rights violations. He had been terminated from his position as a teaching assistant in the chemistry department.

Soon after Bakhtiari was terminated, but before he filed suit, the university’s IT staff backed up the contents of his email account onto two CDs. The university then allowed the messages to be deleted as part of “automated systems maintenance.” It turned over a copy of the CDs to Bakhtiari, but he claimed that large portions of data were missing.

At the trial court level, Bakhtiari claimed that the university should be sanctioned for spoliation for deleting the email messages from the server. The court denied this motion, however, and Bakhtiari sought review with the Eighth Circuit. On appeal, the court affirmed the denial of the motion.

The appellate court held that the lower court did not abuse its discretion in finding that the IT staff had taken appropriate steps to backup the data, and that Bakhtiari may himself have been responsible for the missing portions. Moreover, there was credible evidence that third parties had access to the account before the backups were made, and that Bakhtiari had asked that portions be deleted. Bakhtiari had failed to demonstrate, the court held, that the university acted with a “desire to suppress the truth.”

November 15, 2007 Employment, Ethics, Litigation, Privacy

Be careful with email because your employer is “looking over your shoulder”

Workplace email policy destroyed attorney-client privilege

Scott v. Beth Israel Medical Center, — N.Y.S.2d —-, 2007 WL 3053351 (N.Y. Sup. October 17, 2007).

Dr. Scott, who used to work for Beth Israel Medical Center in New York, sued his former employer for breach of contract and a number of other different things. Before he was terminated, however, he had used his work email account to send messages to his attorneys, discussing potential litigation against Beth Israel.

When Dr. Scott found out that Beth Israel was in possession of these email messages, he asked the court to order that those messages be returned to him. He argued that they were protected from disclosure to Beth Israel under the attorney client privilege.

Beth Israel argued that they were not subject to the privilege because they were not made “in confidence.” There was an email policy in place that provided, among other things, that the computers were to be used for business purposes only, that employees had no personal right of privacy in the material they create or receive through Beth Israel’s computer systems, and that Beth Israel had the right to access and disclose material on its system.

Dr. Scott argued that New York law [CPLR 4548] protected the confidentiality. Simply stated, CPLR 4548 provides that a communication shouldn’t lose its privileged character just because it’s transmitted electronically.

The court denied Dr. Scott’s motion for a protective order, finding that the messages were not protected by the attorney client privilege.

It looked to the case of In re Asia Global Crossing, 322 B.R. 247 (S.D.N.Y. 2005) to conclude that the presence of the email policy destroyed the confidential nature of the communications. The policy banned personal use, the hospital had the right to review the email messages (despite Scott’s unsuccessful HIPAA argument), and Dr. Scott had notice of the policy.

The decision has implications for both individuals and the attorneys who represent them. Employees should be aware that when they are sending messages through their employer’s system, they may not be communicating in confidence. And attorneys sending email messages to their clients’ work email accounts, on matters not relating to the representation of the employer, must be careful not to unwittingly violate the attorney client privilege.

What’s more, although the decision is based on email communications, it could affect the results of any case involving instant messaging or text messaging through the company’s server.

Scroll to top