Counsel Must Take Active Role In Preserving, Retrieving ESI

The state-wide amendments to §2.02.12 of the Uniform Rules of the New York Trial Courts arose in part from focus groups that the Commercial Divisions had conducted, and which reached a general consensus that electronic discovery issues were only going to grow in magnitude and frequency and that they were not going to go away any time soon. Participants recognized that “everybody has a computer,” and there has been “an exponential explosion of evidentiary material,” and that there is a “delicious and wonderful feeling” to be able to get damning evidence from a computer that might otherwise not have been available.⁴

The rules were a culmination of an effort to address the reality that electronic discovery is here to stay.⁵

In Fitzpatrick,⁶ plaintiff, a former high level executive, alleged she was fired after complaining of a hostile work environment created by defendants and further claimed retaliatory termination allegedly resulting from her filing a complaint with the Equal Employment Opportunity Commission. More than a month after being alerted to plaintiff’s intention to file a hostile work environment complaint with the EEOC, defendant entity sent a “preservation notice” e-mail to its information technology manager concerning the preservation of documents and data relative to plaintiff’s charges, which addressed the importance of preserving relevant information, whether in paper or electronic form.

The “preservation notice” provided, among other things, that “all documents, including ESI, were to be retained regardless of any company document retention or destruction policy, and e-mails were to be reviewed for relevant documents and preserved in folders.” Competing affidavits by the parties were submitted contesting whether ESI was properly preserved, deleted and/or overridden, and a finding of spoliation was not found.

The court sustained defendants’ position that it had timely issued its “preservation notice,” but noted that the “facts revealed hereafter may demonstrate that an earlier date is called for” in light of a certain “E-mail A” that was not originally turned over, which defendants characterized as a “response to a long stream of emails” relating to plaintiff’s job performance. In reference to such e-mail, the court noted:

Nonetheless, the court denied plaintiff’s motion to strike defendants’ answer, but did so “without prejudice to renew at trial based on newly discovered evidence.”

Facebook Ruling

Also of interest is a recent pre-action discovery proceeding involving Facebook.com, on which it is not uncommon to find the posting of defamatory comments concerning an individual.

In Cutaia v. Jane Doe, 1746/2009 (Feb. 13, 2009), Suffolk County Supreme Court, on an unopposed application, directed Facebook to be “restrained from destroying, deleting, or otherwise removing or secreting any and all records in its possession that relate to petitioner’s use, or the use by a person employing petitioner’s name, of Facebook’s website” in order for petitioner to be able to ascertain Jane Doe’s identity, who had created a Web page in petitioner’s name that contained libelous and demeaning statements about her.

In G.S. Garritano & Associates CPAs, LLC v. Schaller,⁷ plaintiff, an accounting firm, sought a preliminary injunction against defendant, a former employee, who was subject to a non-competition agreement and an agreement not to communicate or perform work for plaintiff’s clients, to prevent him from destroying electronic data, as well as confirmation of the temporary receiver to be permitted to seize and retain defendant’s computer hardware, software and electronic records and data.

The records at issue were alleged, among other things, to contain transactions and services performed for companies by defendant that were formerly plaintiff’s clients. The court granted injunctive relief and found that: