Electronic media and electronic

Transcription

1 Reasons to Friend Electronic Discovery Law Danielle M. Kays Electronic media and electronic document storage have undeniably changed business and litigation as we knew it, and they continue to do so at a rapid rate. Courts now tweet messages and updates concerning rulings, 1 and a judge may even friend a litigant. 2 Although the means for communication have seemingly become simpler, complying with electronic discovery Danielle M. Kays obligations has become more challenging. As quickly as technology changes, so do the issues surrounding preservation and production of electronically stored information. Motion practice involving electronic discovery slipups is on the rise, and the duties surrounding such discovery exist in all cases. Thus, it is important for attorneys, franchisors, and franchisees alike to take note and continue to educate themselves to avoid the pitfalls that make ugly headlines in the legal and mainstream media. This article provides an update of recent electronic discovery trends and decisions. It also explores the differences among and within the various federal circuits concerning the level of culpability of a party necessary to impose sanctions in disputes over electronic discovery. The article further addresses some of the issues that litigants should consider and be aware of in light of recent legal developments regarding electronic media. As such, it illustrates the importance of educating oneself and embracing electronic discovery requirements in litigation through a discussion of the pitfalls seen in recent decisions. Seminal Zubulake Decision Both the practice of law and the business of franchising have evolved by leaps and bounds in the last twenty, ten, and even five years due to innovations in technology. During that time, the use of the Internet, , instant messaging, handheld devices, and social media, just to list some of the most widespread communication tools, has become mainstream in both business and the practice of law. Both franchisors and franchisees advertise through online media and even exchange disclosure documents electronically. It is not surprising that these tools have created a plethora of procedural, ethical, and evidentiary issues in litigation requiring courts and litigants to tread carefully. It is impossible to discuss electronic discovery without mentioning one of the earliest and seminal decisions concerning e-discovery, Zubulake v. UBS Warburg LLC. 3 Zubulake Danielle M. Kays is an attorney with the Chicago law firm of Grady Pilgrim Christakis Bell LLP. sued UBS for gender discrimination and retaliation. She contended that internal s, stored only on UBS s computer systems, contained key evidence for her case, yet those s had not been produced in discovery. In October 2003, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York issued a discovery order (yet another in a series of discovery orders) that granted Zubulake s motion seeking sanctions against defendant UBS for failure to preserve certain backup tapes and s. Judge Scheindlin recognized that [e]lectronic evidence only complicates matters. As documents are increasingly maintained electronically, it has become easier to delete or tamper with evidence (both intentionally and inadvertently) and more difficult for litigants to craft policies that ensure all relevant documents are preserved. 4 Moreover, the ease of electronic communications and storage also increases the number of documents at issue in discovery. This is especially true regarding backup tapes. Backup tapes are typically retained for disaster recovery purposes, and information stored on the tapes normally is not easily accessible or searchable. Backup tapes also are regularly recycled. Once litigation is probable, if potential evidence is not immediately identified on a backup tape, the tape may be destroyed. On the other hand, the time and expense required to identify potential evidence on backup tapes are often great, and litigants may forgo such expenses by choosing to preserve and produce other documents. However, a litigant might regret the decision not to preserve the backup tapes if the evidence later reveals inadequate document preservation. How the duty to preserve affects the need to preserve backup tapes can be complicated. Once litigation becomes imminent, a party or potential party must suspend its routine document retention/destruction policy and put in place a litigation hold to preserve relevant documents. 5 In addressing the scope of a litigant s duty to preserve evidence, Judge Scheindlin held that in certain circumstances backup tapes must be preserved. Though a party need not preserve every shred of paper, every or electronic document, and every backup tape, a company that is or anticipates being a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary. 6 That duty to preserve applies to the key players in the case. 7 Specifically, regarding the preservation of backup tapes, the party need not retain multiple identical copies of relevant documents. The court in Zubulake recognized that there are many ways to manage electronic data, [and] litigants are free to choose how this task is accomplished. 8 Judge Scheindlin recognized that generally the duty to preserve does not apply to backup tapes maintained solely for the purpose of disaster recovery and that are inaccessible. 9 However, if the tapes are accessible and actively used for information retrieval, then the tapes need to be preserved. 10 Summer 2012 Franchise Law Journal 35

2 Based on this analysis, Judge Scheindlin held that UBS failed adequately to preserve electronically stored information and awarded sanctions. She ordered UBS to pay the costs for plaintiff to re-depose various individuals regarding the destruction of evidence and any document previously withheld. 11 The Zubulake analysis and decision laid the groundwork for many decisions to come. Circuit by circuit and state by state, decisions continued to analyze and define the litigants electronic discovery obligations, though the rulings are varied. Federal Rules of Civil Procedure After Zubulake, the Federal Rules of Civil Procedure were amended effective December 2006 to formalize certain obligations with respect to electronic discovery. Amended Rule 26 requires that the parties discuss the extent of electronic discovery involved in the case and concerns surrounding preservation and retrieval, and it directs the parties to attempt to come to an agreement on those issues. 12 Amended Rule 34(b) allows a requesting party to specify the form in which electronically stored information should be produced. 13 If the request does not specify a form for producing the information, the responding party may choose and identify the form in which the information will be produced, i.e., either the form in which the document is ordinarily maintained or another reasonable form. 14 However, a responding party in most cases is not required to produce electronically stored information in more than one form. 15 Additionally, Rule 37(e) provides a safe harbor for a litigant s failure to provide electronically stored information in certain situations: 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. 16 Consequences of Electronic Discovery Failures Since Zubulake and the amendments to the Federal Rules of Civil Procedure, electronic discovery has become a prime tool used offensively by litigants, with sanctions motions turning into their own minilitigations. Unfortunately, aggressive electronic discovery can also be a scare tactic against an opponent. Even if electronic discovery is not used as a weapon, the fear of giving the opponent the opportunity to use it offensively looms in the back of the litigant s mind as the consequences can be great. Sanctions for the destruction of evidence are varied and can consist of further discovery, cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal (terminating sanctions), listed in order of least to most harsh. 17 Given the dire consequences of these sanctions, it is not surprising that the amount of motion practice related to electronic discovery violations has increased. 18 Despite this rise in the number of cases requesting sanctions for unscrupulous or negligent electronic discovery practices, the rate at which sanctions are issued has stayed constant. In the first half of 2011, the number of sanctions requests based on electronic discovery issues more than doubled compared to the number sought in the first half of Yet, in both years, the rate at which sanctions were actually awarded in such cases remained around 55 percent. 20 Of the cases awarding sanctions for electronic discovery malfeasance, most resulted in monetary sanctions to compensate the wronged party for additional expenses, attorney fees, and costs associated with rectifying the discovery violation. 21 Courts imposed such remedies in more than half of the cases awarding sanctions. A more dreaded consequence of a motion for sanctions is the adverse inference instruction, 22 meaning that the jury is instructed that it may infer that the party who destroyed potentially relevant evidence did so out of a realization that the [evidence was] unfavorable. 23 As Judge Scheindlin noted in Zubulake, the in terrorem effect of an adverse inference sanction is that it often ends litigation it is too difficult a hurdle for the spoliator to overcome. 24 Accordingly, she added, the adverse inference instruction is an extreme sanction and should not be imposed lightly. 25 In the first half of 2011, courts ordered adverse inference instructions in approximately 24 percent of cases that imposed sanctions. Outright dismissal is a final possibility. A recent study found eight such reported cases in the first half of 2011, equaling 24 percent of the cases imposing sanctions during that period. This percentage did not vary from the rate of dismissals imposed for electronic discovery violations in the previous full year. 26 Although discovery sanctions obviously are detrimental to the client, the U.S. District Court for the Western District of Washington in Play Visions v. Dollar Tree Stores 27 recently reminded attorneys to mind their obligations to make reasonable inquiry throughout the discovery process and not to rely solely on the client. During investigation into the various failures of plaintiff during discovery, plaintiff testified that counsel provided little assistance to Play Visions in making responsive discovery productions... [,] was not involved in identifying records custodians, did nothing to familiarize himself with Play Visions document retention and destruction policies, and did not assist in searching for or responding to Defendants first or second requests for production. 28 Rather, plaintiff s counsel relied on his client entirely to make responses to discovery requests. 29 Because the court found that much of plaintiff s discovery misconduct could have been avoided had counsel managed plaintiff in accordance with his duties under Rule 26, the court ordered both Play Visions and its counsel to pay the sanctions in the amount of $137,168.41, jointly and severally. 30 Failure to Issue a Litigation Hold Notice Issuing a litigation hold is a fundamental requirement once a party reasonably foresees litigation. 31 The purpose of a litigation hold is to instruct the recipients to preserve, and not delete or alter, certain documents relevant to pending or anticipated litigation, including electronically stored information. A litigation hold notice should describe the nature of the issues in the case and should identify the key players in the dispute, likely witnesses and individuals with knowledge of the facts related to the case who are subject to the hold, the 36 Franchise Law Journal Summer 2012

3 categories of discoverable information that must be preserved, the relevant time period for the documents to be preserved, the potential locations to search for documents (i.e., backup tapes, servers, network folders, s, and text messages), the format of the documents to be preserved, and contact information for the attorney overseeing the party s preservation duties. The Southern District of New York can perhaps be the hardest on litigants who fail to implement timely a written litigation hold, though not all judges throughout that district apply the same strict standards. On the strict end of the scale, Judge Scheindlin, in a decision entitled Zubulake Revisited: Six Years Later in Pension Committee of Univ. of Montreal Pension Plan v. Banc of America Securities, LLC, made waves by concluding that the failure to issue a written litigation hold constitutes gross negligence, which results in an adverse inference instruction as well as monetary sanctions, even absent proof that relevant documents had actually been destroyed. 32 In that case, various investors filed suit in a Florida federal court in 2004 asserting securities violations and seeking to recover about $500 million in damages. The court stayed the case pending the resolution of the parties motions to dismiss and thereafter transferred it to the Southern District of New York in Plaintiffs, however, did not issue a written litigation hold to their employees until several years later in Defendants subsequently moved for spoliation sanctions after they identified 311 documents that should have been produced by plaintiffs and pointed to the paucity of documents that plaintiffs had. Judge Scheindlin noted various factors that constituted gross negligence, including failing to issue a written litigation hold and destroying backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources. 33 The judge considered this conduct to be gross negligence and held that a court may fairly presume not only that the culpable party destroyed responsive documents but also the relevance of those missing documents and prejudice. 34 Not all judges in the Southern District of New York, however, have applied such a strict standard. Months after the Pension Committee decision, a fellow district judge in the Southern District disagreed with Judge Scheindlin in Orbit One Communications v. Numerex Corp. 35 In that case, the court denied defendant s motion for an adverse interest jury instruction as a sanction for spoliation of electronic evidence because defendant failed to show that relevant evidence was actually destroyed. 36 The court denied the motion despite the fact that, as in Pension Committee, plaintiff failed to issue a litigation hold, deleted information from its servers, and acted in a cavalier manner concerning its discovery obligations. 37 The court stated that [n]o matter how inadequate a party s efforts at preservation may be, however, sanctions are not warranted unless there is proof that some information of significance has actually been lost. 38 Other judges in the Southern District and in the U.S. Court of Appeals for the Second Circuit have similarly disagreed with Pension Committee. 39 The court in Orbit One noted that demonstrating the relevance of destroyed documents is not a difficult task. In contrast, the consequences of abolishing such a burden are too great. Because of the likelihood that some data will be lost in virtually any case, there is a real danger that litigation could become a gotcha game. 40 Other district courts in Illinois, Maryland, and Arizona have also disagreed with Judge Scheindlin s approach. Although these courts recognized that the failure to implement a litigation hold is an important factor in determining a party s culpability, they declined to deem it per se evidence of culpable conduct giving rise to a presumption of relevance and prejudice. 41 Degree of Culpability Required for Sanctions Federal circuit courts are split as to the degree of culpability required for imposing an adverse inference instruction or more severe sanctions. Many circuits require a finding of bad faith. For example, courts in the Fifth, 42 Seventh, 43 Eighth, 44 Tenth, 45 and D.C. Circuits 46 appear to require bad faith, i.e., a showing of intentional destruction of the evidence for the purpose of hiding adverse information. 47 Put another way, if a party loses or destroys evidence after the duty to preserve attaches, the aggrieved party must establish and not infer the offending party s consciousness of a weak case. 48 In these circuits, mere negligence is insufficient to warrant an adverse inference instruction regarding spoliation. 49 The First, 50 Third, 51 and Fourth 52 Circuits have held that bad faith is not essential to imposing severe sanctions if there is severe prejudice, although the cases often emphasize the presence of bad faith. Courts in the Third Circuit balance the degree of the litigant s fault and the prejudice to the opposing party. In contrast, the Sixth and Ninth Circuits appear to agree with the Second Circuit, i.e., that more severe sanctions may be imposed for merely negligent destruction of evidence. 53 Are Litigants Ever Safe? Parties beware: Discovery sanctions are not limited to pending cases. Courts have awarded sanctions even after cases have settled or completed trial. In Green v. Blitz, counsel for Green settled her claim and later served as counsel for plaintiff in a similar case against Blitz, both alleging claims for product liability. 54 Through discovery in the later case, plaintiff s counsel learned of documents not disclosed in the previously resolved case and filed a motion for sanctions in the prior action. The district court sanctioned defendant due to defendant s failure to institute a litigation hold, suspend its systematic destruction of potentially relevant documents, conduct electronic word searches for relevant s, and consult its information technology department regarding searches for electronic documents. The district court ordered Blitz to pay $250,000 in civil contempt sanctions to plaintiff and to furnish a copy of the district court s order to every plaintiff in every lawsuit pending and every lawsuit that had proceeded against defendant within the past two years. 55 The court also ordered an addi- Summer 2012 Franchise Law Journal 37

4 tional $500,000 civil purging sanction tolled for thirty days to coerce defendant into compliance with the court s order, a sanction that would extinguish upon defendant s certification to the district court that it had complied with the order. 56 Finally, the court ordered defendant to file a copy of the order in every lawsuit in which it would participate for a period of five years. The court stated that it expresses no opinion as to the manner in which a particular court may use or not use such copy. 57 The chilling effect of this decision is obvious: a litigant may never be safe, even after executing a settlement agreement. Specifically, the court adopted the magistrate judge s finding that [w]hen Ms. Green entered into the high-low settlement agreement and the release of claims she did not have any way of knowing that Blitz had failed to comply with its obligation to produce all documents relevant to the case. 58 Thus, plaintiff could not have bargained away her right to sanctions when she did not know of defendant s sanctionable conduct. 59 Franchisors especially should take note when they find themselves facing similar lawsuits against counsel familiar with prior litigation. Counsel should consider adding specific provisions to settlement releases concerning discovery, such as a release of claims relating to discovery or other conduct during the litigation. And, of course, counsel and litigants alike should be especially careful to comply with their discovery duties to avoid any later-arising issues. Weighing Proportionality Courts should attempt to limit unreasonable litigation costs stemming from ever-changing electronic discovery obligations through application of a proportionality test. Generally, [e]lectronic discovery burdens should be proportional to the amount in controversy and the nature of the case. Otherwise, transaction costs due to electronic discovery will overwhelm the ability to resolve disputes fairly in litigation. 60 Accordingly, the reasonableness of discovery costs and burdens in a $550 million case arising out of the liquidation of hedge funds... will be different than the reasonableness of discovery burdens in a suit to enforce noncompetition agreements and related issues. 61 Not only does the size of the case matter, but the value of the evidence should be considered. 62 To achieve proportionality, a court should weigh the preservation and production costs against the amount in controversy, the importance of the discovery and the issues for which the information is relevant, and the resources available to the parties. 63 Thus, discovery that would be too expensive for one defendant to bear would be a drop in the bucket for another. 64 Yet, regardless of a party s means, size, or available resources, courts and parties should obtain discovery through the simplest, cheapest, least burdensome, and most efficient manner. Although these standards sound clear in concept, recent decisions have shown the difficulty in applying discovery limits based on proportionality. For example, in Pippins v. KPMG LLP, a putative class action against KPMG for violations of various wage and labor laws, KPMG preserved more than 2,500 hard drives used by members of the potential class while it awaited a ruling on plaintiffs motion to certify the class. KPMG estimated costs to preserve those hard drives at more than $1.5 million. Thus, KPMG sought a protective order to limit the scope of its preservation requirements or to order plaintiffs to share the costs. 65 KPMG argued that the burden and expense to preserve that many hard drives greatly outweighed the benefits, and it sought to limit the preservation of hard drives to a smaller sampling. The magistrate judge held, however, that he could not determine at that point the type of information on those hard drives. The judge attributed the difficulty to KPMG s efforts not to reveal that information or to allow the hard drives to be subject to sampling to determine the benefit of the information on those drives to plaintiffs case. For that reason, the magistrate judge denied KPMG s motion. 66 KPMG appealed that decision to the district court, which affirmed the ruling. 67 Notably, by the time the district court reviewed the magistrate s order, the court had conditionally certified the class. 68 Regardless, the district court found the magistrate court s order perfectly sensible, especially given that the duty to preserve all putative class members was not permanent; that is, once the opt-in period for the class ended, KPMG could destroy all non class member hard drives. 69 Additionally, the district court agreed that the proportionality standard was hard to apply without KPMG s willingness to provide a sample of the information contained on the hard drives Addition of Rule 502 Because of the skyrocketing amount of evidence created by the use of electronic documents and media and the severe consequences if such evidence is not properly preserved, reviewed, and produced, parties often must cull through seemingly endless discovery materials to make both responsiveness and privilege determinations. Litigants accordingly have faced increased use of electronic discovery vendors and associated costs, increased billable hours for attorneys reviewing discovery, and extended discovery periods in many lawsuits. Federal Rule of Evidence 502 was added in 2008 to try to control some of those costs and time managing such discovery while still protecting parties as to privilege concerns. Rule 502 deals with inadvertent disclosure of privileged materials and prescribes a process to rectify errors in production and limit waiver of any privilege or work-product protection, informally known as a clawback provision. In part, Rule 502 provides that an inadvertent disclosure does not waive the producing party s privilege if the holder of the privilege or protection took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error. 70 Thus, attorneys are encouraged to spend less time toiling over the review of endless electronic documents, many that may not even be relevant or have any significant impact on a case. Should any privileged documents be produced inadvertently, the consequences are less detrimental to the success of a case. Yet, in order to invoke this clawback provision, the attorney must have taken reasonable steps to prevent disclosure of privileged information. 71 The interpretation of reasonable 38 Franchise Law Journal Summer 2012

5 steps has been a prime topic of recent decisions. Failure to use an electronic discovery review tool has been found unreasonable. In one case, manual review of a large production of paper documents and the production of the incorrect pile of documents containing privileged information did not qualify as reasonable steps to prevent disclosure. 72 In another case, the court applied the clawback provision of Rule 502 where a technical glitch in electronic discovery software resulted in the inadvertent disclosure. 73 However, in another case where an attorney manually reviewed a small number of documents, the court focused on the small percentage of the documents (only 1.5 percent) that the attorney inadvertently disclosed and found the attorney s actions reasonable. 74 New Media in Litigation Social media, including LinkedIn, Facebook, and Twitter, has been a hot topic for both franchisors and franchisees alike with respect to marketing, intellectual property concerns, system enforcement, and other issues. Given the number of uses of such information, it is easy to see how information transmitted through such media can be relevant in litigation. Courts have held that, if relevant, electronically stored information contained on a party s social networking site can be subject to discovery. 75 Once a party has established that the content on a social networking site is relevant and subject to discovery, the court must also consider how much of the content is discoverable. Courts have struggled with how to make this determination. One court even conducted an in camera review of a litigant s Facebook profile by friending the user. 76 Another hurdle that a litigant must overcome is authentication of the data obtained from social media. Courts can be wary of allowing such evidence because of the possibility that and ease with which such evidence can be altered or fabricated. 77 Such evidence can be authenticated through (1) the alleged owner s testimony under oath concerning the account, profile, or posting; (2) a search of the alleged owner s hard drive and Internet browsing history to determine the computer used to originate the account, profile, or posting; or (3) obtainment of information directly from the social networking website that links the establishment of the profile to the person who allegedly created it, and also links the posting to the person who initiated it. 78 Social media is and will continue to be relevant and used by parties in litigation. It is also subject to the preservation and production requirements of all other electronic documents. Thus, parties should not attempt to clean up their online footprints as an attorney might clean up a witness before trial. 79 Such cleanup will likely result in sanctions. To Burn or Not to Burn? One last thought: Do not burn your computer in the middle of litigation. Recently, the U.S. District Court for the Southern District of Alabama decided a motion to sanction a plaintiff in a reverse discrimination case for burning her computer approximately eight months after she had filed a complaint. 80 Needless to say, the court sanctioned the plaintiff. 81 Conclusion Litigants obligations regarding electronic discovery continue to evolve, and new issues will continue to present themselves in future cases. Attorneys, franchisors, and franchisees should educate themselves continuously on the ever-changing standards in electronic discovery the importance of mindful adherence to electronic discovery standards is evident. Endnotes 1. Admin. Office Penn. Courts, Pennsylvania Supreme Court to Tweet Rulings (Oct. 18, 2011),. 2. Barnes v. CUS Nashville, 2010 WL , at *1 (M.D. Tenn. June 3, 2010) F.R.D. 309 (S.D.N.Y. 2003) (initial Zubulake order) F.R.D. 212, 214 (S.D.N.Y. 2003). 5. Id. at Id. 7. Id. at Id. at Id. at Id. 11. Id. at Fed. R. Civ. P Fed. R. Civ. P. 34(b)(c). 14. Fed. R. Civ. P. 34(e). 15. Id. 16. Fed. R. Civ. P. 37(e). 17. Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 469 (S.D.N.Y. 2010) (citations omitted). 18. In the first half of 2011, 187 decisions concerning discovery were found, amounting to an 82 percent increase over the number identified in the same period in Mid-Year E-Discovery Update, Gibson-Dunn, July 22, 2011, Id. 20. Id. 21. Id. 22. As an example of such a sanction resulting from plaintiff s gross negligence in preserving and producing evidence, the court in Pension Committee of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC gave the jury a charge that: (1) laid out the elements of spoliation; (2) instructed the jury that these plaintiffs were grossly negligent in performing discovery obligations and failed to preserve evidence after a preservation duty arose; (3) told the jury that it could presume that the lost evidence was relevant and would have been favorable to the defendant; (4) told the jury that if they declined to presume that the lost evidence was relevant or favorable, the jury s inquiry into spoliation was over; (5) explained that if the jury did presume relevance or prejudice, it then had to decide if any of the six plaintiffs had rebutted the presumption; and (6) explained the consequences of a rebutted and an unrebutted presumption. Pension Comm., 685 F. Supp. 2d at 496 n Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, (S.D.N.Y. 2003) (internal quotations omitted). 24. Id. 25. Id. Summer 2012 Franchise Law Journal 39

6 Mid-Year E-Discovery Update, supra note WL , at *3 (W.D. Wash. June 8, 2011). 28. Id. 29. Id. 30. Id. at * See Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, (S.D.N.Y. 2010); Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011). 32. Pension Comm., 685 F. Supp. 2d at Id. at Id. at F.R.D. 429, 441 (S.D.N.Y. Oct. 26, 2010) (internal citations omitted) 36. Id. 37. Id. 38. Id. 39. See Steuben Foods, Inc. v. Country Gourmet Foods, LLC, 2011 WL (W.D.N.Y. Apr. 21, 2011); Centrifugal Force, Inc. v. Softnet Commc n Inc., 2011 WL (S.D.N.Y. May 11, 2011). 40. Orbit One Commc ns, 271 F.R.D. at See, e.g., Haynes v. Dart, No. 08 C 4834, 2010 WL , at *4 (N.D. Ill. Jan. 11, 2010); Sampson v. City of Cambridge, 251 F.R.D. 172, (D. Md. 2008); Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1007 (D. Ariz. 2011). 42. [T]he severe sanctions of granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of bad faith. Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, (S.D. Tex. 2010). 43. Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008). 44. Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 2004). 45. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009). 46. Wyler v. Korean Air Lines Co., 928 F.2d 1167, 1174 (D.C. Cir. 1991). 47. Faas, 532 F.3d at 643 (internal quotations and citations omitted). 48. Turner, 563 F.3d at 1149 (bad faith not inferred where defendant attempted to provide relevant documents and also produced documents during discovery that revealed similar information to those destroyed). 49. See, e.g., Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, (S.D. Tex. 2010) (internal citations omitted). 50. Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 447 (1st Cir. 1997). 51. See Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 335 (D.N.J. 2004) (finding that the offending party s culpability is largely irrelevant as it cannot be denied that the opposing party has been prejudiced ). 52. Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir. 2004); Sampson v. City of Cambridge, Md., 251 F.R.D. 172, 179 (D. Md. 2008) (noting that the Fourth Circuit requires only a showing of fault, with the degree of fault impacting the severity of sanctions ). 53. See, e.g., Rogers v. T.J. Samson Cmty. Hosp., 276 F.3d 228, 232 (6th Cir. 2002); Lewis v. Ryan, 261 F.R.D. 513, 521 (S.D. Cal. 2009). 54. Green v. Blitz U.S.A., Inc., 2011 WL (E.D. Tex. Mar. 1, 2011). 55. Id. at * Id. 57. Id. 58. See Report and Recommendation, Green v. Blitz U.S.A., Inc., Docket No. 243, 2:07-CV-372 TJW, at (E.D. Tex. 2011). 59. Id. 60. The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production 17 cmt. 2.b. (2d ed. 2007). 61. Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 611 (S.D. Tex. 2010). 62. See Sedona Conference WG1, Sedona Conference Commentary on Proportionality in Electronic Discovery, 11 Sedona Conf. J. (Fall 2010). 63. Zubulake v. UBS Warburg LLC, 229 F.R.D. at 316, Id. at Pippins v. KPMG LLP, 2011 WL (S.D.N.Y. Oct. 7, 2011). 66. Id. 67. Pippins v. KPMG LLP, 2012 WL (S.D.N.Y. Feb. 3, 2012). 68. Id. at * Id. 70. Fed. R. Evid. 502(b). 71. Id. 72. Sidney v. Focused Retail Prop. I, LLC, 2011 WL , at *4 5 (N.D. Ill. Mar. 30, 2011). 73. Datel Holdings Ltd. v. Microsoft Corp., 2011 WL , at *3 (N.D. Cal. Mar. 11, 2011). 74. Valentin v. Bank of N.Y. Mellon Corp., 2011 WL , at *2 3 (S.D.N.Y. Apr. 14, 2011). 75. Because many social media providers do not promise privacy to the user, data provided or posted by a party is not private (even if subject to various privacy settings) and can be discoverable. Romano v. Steelcase, 907 N.Y.S. 2d 650, 655 (2010). 76. Barnes v. CUS Nashville, 2010 WL , at *1 (M.D. Tenn. June 3, 2010). 77. People v. Mills, III, 2011 WL , at *13 (Mich. Ct. App. Mar. 24, 2011). 78. Griffin v. Maryland, No. 74, 2011 WL , at *9 10 (Md. Apr. 28, 2011). 79. Lester v. Allied Concrete Co., 80 Va. Cir. 454 (Va. Cir. Ct. Sept. 1, 2011). 80. Evans v. Mobile County Health Dep t, 2012 WL , at *1 (S.D. Ala. Jan. 24, 2012). 81. Id. at * Franchise Law Journal Summer 2012