E-Discovery Law Alert : New York & New Jersey Attorneys for Electronic Discovery and Corporate Information Management Law

Even though Hamilton is not binding outside the Fourth Circuit, the opinion may nonetheless be viewed as conflicting with governing law in other states, including New Jersey. As readers of this blog may recall from our prior discussion of the decision in Stengart v. Loving Care Agency, Inc., the Supreme Court of New Jersey held that an employee’s emails with her attorney, though sent from her work computer, were protected by the attorney-client privilege and therefore did not have to be disclosed to her employer, whom she accused of discrimination. The Stengart decision may, however, be distinguished from Hamilton on several grounds. First, unlike the emails in Hamilton that were sent from the defendant’s workplace computer through his work email account, the emails in Stengart were sent from a personal, web-based, password-protected email account. Second, in contrast to the clear “no expectation of privacy” policy in Hamilton, the employer’s policy in Stengart regarding personal email accounts was obscure. Finally, the privileges at issue were different. In Stengart, the New Jersey Supreme Court opined that the public interest in attorney-client privilege is of such importance that waiver should not easily be inferred. It is possible that the New Jersey Supreme Court might not accord the marital privilege the same level of sanctity. In any event, although the Hamilton and Stengart courts reached what may be viewed as divergent conclusions, both sought to balance the terms of the employer’s policy with efforts by the employee to maintain privacy, in addition to affording deference to traditionally privileged communications, such as those between attorney and client or husband and wife.

With the proliferation of personal devices, such as smart phones and tablets, employers and employees should be aware that communication privileges can be waived when sent through non-protected media. To avoid confusion, employers ought to have in place clear, comprehensive information technology policies. Employers should also consider encouraging their employees to engage in personal communications using only personal devices rather than employer-owned equipment. If employers are successful in convincing their employees to abide by clear information technology policies, they will reduce confusion in the workplace and avoid discovery disputes in the event that litigation between employer and employee unfortunately comes to fruition.

Kevin G. Walsh is a Director in the Gibbons Business & Commercial Litigation Department. Marc D. Bianchi, an Associate in the Gibbons Business & Commercial Litigation Department, co-authored this post.

In holding that First American had a duty to issue a “litigation hold” to its independent agents, the Court placed great emphasis on the language of First American’s agency contracts. This should serve as a reminder to litigants and potential litigants to be aware of contract clauses regarding access to and control of documents. Such clauses may give rise to discovery obligations involving documents maintained or physically possessed by agents or independent contractors. Identifying the extent of discovery obligations and taking action is imperative to avoid potential litigation sanctions, ranging from fees, cost shifting, or adverse jury instructions, to dismissal or judgment.

Marc D. Bianchi is an Associate in the Gibbons Business & Commercial Litigation Department.

Judge Yanthis found the first prong clearly satisfied because the City was silent regarding its duty to preserve (focusing instead on only culpability and relevance). In beginning the analysis on culpability, the Court deemed the failure was “at least negligent.” Ultimately, it found the City to be grossly negligent because (1) relevant New York State law (federal discovery rules aside) independently required the City records sought in the case to have been maintained and (2) the City had commenced two actions against the plaintiffs two years earlier for alleged building violations, which triggered the City’s legal obligation under applicable federal discovery rules to preserve the data in question. Finally, the Court held that the destroyed e-mails were relevant, especially in light of other e-mails that plaintiffs were able to uncover from third party sources and which a reasonable trier of fact could conclude were favorable to plaintiffs’ case. Finding all of the salient factors satisfied, the Court next examined what sanctions were most appropriate, concluding that “an adverse inference instruction to the effect that the City negligently destroyed e-mails . . . and that said e-mail would have been favorable to plaintiffs’ case” was warranted. The Court also awarded “plaintiffs costs and fees arising from the instant motion.”

The case highlights a number of important points. First, a party does not need to be sued before its legal hold obligations are triggered. In fact, such obligations can be triggered in multiple ways, including by state action affirmatively instituting a regulatory or criminal proceeding that is related to the ultimate civil action against the government in question. Second, the failure to implement a document and e-mail retention policy can be viewed by courts as grossly negligent, at a minimum, and thus deemed to satisfy the “culpable state of mind” requirement for sanctions to issue. Third, municipalities and other state governmental entities involved in federal civil litigation will be held to the same discovery rules and standards as corporations and individuals. Finally, the costs of a successful spoliation sanctions motion, including attorneys fees, can be recovered, which provides additional incentives for such motions to be made where the evidence of spoliation is clear and where it can reasonably be inferred that the destroyed materials would have been favorable to the movant’s case.

Jeffrey L. Nagel is a Director in the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.

However, the Court refused to let the County off unscathed for its “gross negligence.” In particular, the Court found that the County’s failure to institute a litigation hold, to disable its automatic email deletion program and to preserve copies of its backup tapes warranted the imposition of reasonable attorneys’ fees and costs associated with State National’s time incurred in investigating the County’s email production. The Court reasoned:

In this case, when a party fails to issue a litigation hold despite pending litigation and does not preserve emails of relevant custodians in breach of its duty, the adversary is forced to explore whether sanctions such as an adverse inference or more drastic sanctions - dismissal or suppression of evidence - are warranted. To perform such an investigation requires the non-breaching party to expend attorney time, and in some cases, expert fees to determine the extent and scope of the deletion or destruction. If, following such an investigation, there is no basis to award such spoliation sanctions or, as in this case, a court concludes that there is a failure to demonstrate that an adverse inference is warranted, the non-breaching party still has suffered damages in the context of attorneys’ fees and costs.

The County appealed the Court’s June 30, 2011, decision, as it asserted that sanctions were inappropriate because there had been no showing of spoliation. The District Court summarily rejected the County’s arguments, and noted that the County failed to provide the Court with any cases calling into question the magistrate judge’s ability to impose sanctions in the form of attorneys’ fees and costs incurred by State National as a result of the County’s failure to preserve evidence.

In addition to the obvious lesson that litigation hold procedures must be timely and comprehensive, this case teaches that Practitioners should, to the extent possible, take all steps available to them to develop a record regarding the nature of the spoliated evidence, and particularly its relevance to the issues in the case, before making an application to the court for severe sanctions like an adverse inference or dismissal of claims/suppression of defenses.

A prior post discusses a New Jersey District Court’s finding of “gross negligence” based at least in part upon a party’s failure to institute a timely litigation hold.

Scott J. Etish is an Associate on the Gibbons E-Discovery Task Force.

Beginning in late 2010 through early 2011, the SEC conducted a sweep of registered investment advisors and investment adviser firms to gather information about their use of, and policies and procedures regarding, social media including their existing or prospective communications on social media and those related to ongoing monitoring or review of such communications. On January 4, 2012, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) issued a national examination “Risk Alert” providing the Staff’s observations based on a review of investment advisors of varying sizes and strategies that use social media. The OCIE, while more informal than the previously-issued FINRA Notices, made clear that a firm’s use of social media must comply with the already-existing provisions of the federal securities laws including anti-fraud, compliance and recordkeeping provisions. The Risk Alert’s “key takeaway[ ]” was as follows:

Investment advisers that use or permit the use of social media by their representatives, solicitors and/or third parties should consider periodically evaluating the effectiveness of their compliance program as it relates to social media. Factors that might be considered include usage guidelines, content standards, sufficient monitoring, approval of content, training, etc. Particular attention should be paid to third party content (if permitted) and recordkeeping responsibilities.

The Alert came on the heels of the SEC’s January 4, 2012 charge of an Illinois-based investment advisor related to his alleged offer to sell more than $500 billion in fictitious securities through various social-media websites such as LinkedIn. The SEC simultaneously issued an “Investor Alert” aimed to help investors be better aware of fraudulent schemes that use social media, and an “Investor Bulletin” containing best practices for investors to protect their information and avoid fraud.

One well-publicized attempt to comply with applicable regulations has been offered by financial services firm Raymond James Financial Inc. On November 2, 2011, Raymond James and Actiance (the company providing the software for Raymond James’ program), announced the implementation of a self-proclaimed “social media solution for financial advisors.” The “Socialite” platform is described as “enabl[ing] the company’s financial advisors to utilize social media sites including LinkedIn, Facebook and Twitter. The firm is also offering advisors optional marketing support with access to a library of pre-approved content and analytics to measure engagement and their social graph.” The Socialite system apparently allows financial services firms to moderate, manage and archive social media traffic routed through the solution. This approach, while perhaps removing the spontaneity of social media and certainly providing some delay in communications, provides at least a partial solution to this growing industry issue.

Elizabeth Ann Fitzwater is Counsel to the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.

With respect to preservation, the parties are to agree on the scope and methods for preservation and discuss whether to disclose the dates, contents and recipients of “litigation hold” notices. The parties are required to discuss methods for search and review, including potential keyword searches, date restrictions, and whether backup files should be searched. In discussing the production of electronic documents, the parties should confer about the format for production (e.g., native, TIF), the timing of productions and the number of expected custodians. Parties must also address the issue of privileged material, inadvertent production/claw-back agreements and whether the parties have discussed a Rule 502(d) order (which have been addressed in other blog submissions). Click here for Rule 502/clawback blog posts, here for inadvertent production blog posts and here for inadvertent disclosure blog posts. The Submission also asks the parties to estimate the cost of electronic discovery and address any cost-shifting or sharing agreements. In recognition of the fact that knowledge concerning e-discovery issues and obstacles may develop during the case, the Submission contemplates that additions and modifications may be required.

Attorneys may anticipate a more in-depth inquiry concerning e-discovery from the federal bench during the pilot program and should be prepared to discuss these issues with their clients, opposing counsel and judge at the outset of the litigation. For more information on other parts of the pilot program, including motion and final pretrial conference procedures, click the Report and the Gibbons Business Litigation Alert.

Paul A. Saso is an Associate on the Gibbons E-Discovery Task Force.

But the regulations may be more constrained for non-profits, thanks to the Sarbanes-Oxley Act of 2002, notes TechLaw's Landau.

“Certain SOX requirements impose criminal liability on exempt organizations that destroy records with the intent to obstruct a federal investigation,” he says. “Additionally, IRS’ revised Form 990—the annual information return filed by most publicly supported exempt organizations—indicates the agency’s intent to continue to scrutinize corporate governance policies of exempt organizations.”

The challenges aren’t limited to paper-based documents, notes Inventus' Melchionda.

“Despite the widespread use of electronic filings, the volume of paper records is increasing in about 56 percent of organizations, and it’s decreasing in only 22 percent,” he relates. “Concurrently, electronic records volume is increasing rapidly for 70 percent of companies and it’s not decreasing in any of them.”

Findings like those hint at the potential cost savings, and regulatory compliance that may be utilized by businesses, Melchionda points out.

“We worked with a Fortune 10 financial services company that requested a comprehensive physical records reconciliation project to comply with records retention rules and business process procedures,” Melchionda says. “The client was incurring a high annual carrying cost for records with inventory that was more than 10 years old.”

Completing the metadata record-keeping requirements associated with the non-compliant records meant the client was able to make “confident and defensible retention and destruction decisions” on the records “as well as provide cost savings opportunities,” he adds. “We developed a robust methodology and strategy that provided better planning and estimation of disposition, and created scalable, repeatable record classification methodology while aligning record classification with corporate taxonomy. We’ve had cases where improved record retention and destruction strategies have yielded annual savings of nearly $800,000, while easing the integration of legacy and present records through a manageable, scalable and process driven framework.”

Generally Accepted Recordkeeping Principles, or GARP, have been developed by ARMA International, a non-profit professional association that addresses issues concerning the efficient maintenance, retrieval and preservation of vital records and information, says Duffy.

“The eight GARP principles address accountability, transparency, integrity, protection, compliance, availability, retention and disposition,” he explains. “Being GARP-compliant involves identifying all laws and regulations, developing systematic processes to capture and manage records through their life-cycle, and establishing continuous audit and improvement processes.”

Adherence to GARP Principles can result in ethical decisions by organizations and individuals, he adds, noting that the success of such efforts means they must be embraced by board and C-level officers.

“In our experience, GARP compliance requires the establishment of a statement of purpose to ensure compliance, facilitate retrieval and reduce storage costs,” he says. “You also have to establish the scope of your efforts, including the identification of employees, business units and storage locations.”

Consider the reasonableness of your records management policies and practices, Duffy advises.

“Among other issues, examine their scope, purpose, application and compliance,” he explains. “Do they address preservation and production issues, and do they address the information life cycle, while providing for obligations and measures directed at protecting privacy of information that should be kept confidential, such as medical records or propriety company information?”

As Landau further explained, “over-restrictive IG policies and record retention plans will lead to underground archiving.” Policies need to focus on business continuity needs as well as regulatory compliance. They also need to allow employees to do their jobs effectively and efficiently. “Clearly defensibility and risk mitigation is critical and so is the ability and willingness to comply. It is a delicate balance that has to be managed,” says Landau.

"Overall, retention schedules should be prepared with care," Duffy adds.

“Bear in mind that consistent application of your records policy can demonstrate good faith legal compliance,” he cautioned. “So, when you group records into categories, use terms that all employees understand—and speak with your IT, regulatory/compliance and legal departments so they ‘make sense’ to the employees. If you do so, you're much more likely to facilitate understanding and implementation.”

The PowerPoint presentation that was used for this panel discussion can be found here.

Phillip J. Duffy is a Director on the Gibbons E-Discovery Task Force.

It was discussed that preservation does not end with a good litigation hold letter, but that consistent follow-up is also required to effect the ultimate purpose of the litigation hold. The panel noted that this is an evolving process which may require an additional litigation hold with revised and/or new categories.

This panel moved beyond the nuts and bolts of drafting litigation holds and discussed their standing in current case law, including the consequences of a failure to issue a written litigation hold, the discoverability of litigation holds and the exceptions to the “privilege” that might otherwise attach to them. Recognizing that no party’s preservation efforts are ever going to be perfect when judged after the fact, the panel recommended that litigants should always be prepared to explain why their preservation efforts were reasonable when undertaken and maintain a solid contemporaneous record of what they are doing to preserve documents.

Elizabeth Ann Fitzwater is Counsel to the Gibbons E-Discovery Task Force.

It is fair to question whether this justifies the burden of archiving extraordinary volumes of documents. The goal of the enforcement arm of the SEC is to ferret out securities fraud and appropriately charge the wrongdoers. One could argue that a focus on records retention diverts focus from that goal. A counter argument, however, is that proper enforcement necessitates comprehensive records retention. For now, the SEC is working with NARA to revamp its records retention policy. It remains to be seen whether the agency will be required to comply with an enhanced set of records retention rules and, if so, precisely what those rules will entail.

Ghillaine A. Reid is a Director on the Gibbons E-Discovery Task Force.

The Court concluded that DuPont did not violate its duty to preserve documents. Id. at *39-40. Instead, the Court reasoned that DuPont had no reason to know that the documents and information allegedly within the possession of the former employees “would be relevant, or potentially relevant, to the litigation against [its former employee] or Kolon.” Id. at *40. Moreover, the Court determined that the scope of DuPont’s duty to preserve was satisfied in its First Hold Order because “the universe of DuPont’s knowledge was quite limited at that point,” and the company had no reason to identify the former employees as “key players.” Id. at *41. Overall, DuPont did not have a duty to preserve the former employees’ email accounts, so no spoliation occurred. Id. at *46.

There are some practical pointers to draw from DuPont’s actions, each of which contributed to the Court’s denial of Kolon’s motion for sanctions:

• First, DuPont promptly hired counsel to assess its litigation hold obligations before it commenced litigation.
• Second, DuPont refreshed its litigation hold notice at several points throughout the litigation and did so promptly.
• Third, DuPont ensured that its foreign affiliates were aware of the litigation hold, demonstrating its recognition of the need to educate foreign employees about the U.S. legal process and the duty to preserve.
• Fourth, the Court recognized that DuPont’s employees adequately transferred information to their successors upon leaving the company or changing positions, some of which was ultimately produced to Kolon.
• Lastly, DuPont had a formal policy for deleting the email accounts of its former employees. Although the relative strength of that policy is debatable, DuPont’s institution and maintenance of a formal policy weighed in its favor.

Overall, DuPont demonstrated to the Court that its reasonable, professional attempts to preserve electronically-stored information were appropriate -- and that its duty to preserve was satisfied -- consequently, there was no spoliation to sanction.

Jennifer Marino Thibodaux is an Associate on the Gibbons E-Discovery Task Force.

Sanctionable Conduct and the Range of Potential Sanctions

Sanctions were awarded most often in response to failures to preserve ESI but were also awarded for ESI production failures and delays. In response, courts have imposed a range of sanctions, from the most severe -- dismissal of all claims or defenses, adverse jury instructions and monetary awards, some as high as $5 million -- to lesser but still significant sanctions, such as witness or evidence preclusion, shifts in burdens of proof and supplemental discovery. Some courts have devised more creative penalties by, for example, ordering participation in court-administered ethics programs or payments to fund bar association educational programs.

Attorneys Are Not Immune from Sanctions

In addition to discussing sanctions against litigants, the study also highlighted the increase in sanctions imposed against both in-house and outside counsel. These most commonly took the form of attorneys’ fees and cost awards in amounts from $500 to $500,000. In some instances, both counsel and the parties were responsible for paying those fees and costs. Those awards emanated from various levels of misconduct including negligence, gross negligence, reckless and intentional conduct. 

* * *

Although sanctions motions and awards increased steadily through 2009, the Duke authors conclude that the pendulum may be swinging back to a more reasonable and proportional approach by the courts; although the number of sanctions motions filed in 2010 increased, courts granted 55% of those motions as compared with 70% in 2009. See 2010 Year-End Electronic Discovery and Information Law Update, published by Gibson Dunn. Thus, while the overall number of successful sanctions motions and awards remains staggering and a potent reminder of the pitfalls that await the unwary, perhaps courts in the sanctions context are implicitly recognizing the complexities and challenges of e-discovery as well as more practical and reasonable threshold inquiries such as whether discovery-relevant information was actually lost. A good example of this approach is the sanctions analysis in the recent Orbit One case. Orbit One Communications, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010). Additional discussion of this case can be found here.

Judge Francis itemized the instances where Orbit One and Ronsen failed to adopt and implement model preservation procedures, but also observed that the data on Ronsen’s laptop, hard drive, backup disks and email account either had been archived, was uncompromised, was otherwise still retrievable and/or had actually been previously produced. As such, the court concluded that sanctions, particularly the severe sanction of an adverse inference, was not appropriate because there was insufficient evidence that any of Orbit One and Ronsen’s actions resulted in the loss of any “discovery-relevant” information -- information that is likely relevant even if only under the broad definition of the Federal Rules. The court noted that sanctions, particularly in the form of an adverse inference, are predicated on the loss of information that is “relevant” to a claim or defense and to “ameliorate any prejudice to the innocent party by filling the evidentiary gap created by the party that destroyed evidence.” Accordingly, the sanction of an adverse inference for inadequate preservation efforts must be tied to a showing of the loss of “discovery-relevant” materials and prejudice to the innocent party, not simply to the spoliating party’s gross negligence or bad faith. Magistrate Judge Francis took issue with Pension Committee for its omission of the discovery-relevance requirement and for the suggestion that sanctions are warranted by a mere showing that a party’s preservation efforts were inadequate. Under that standard, the court reasoned that litigation would become a “gotcha” game between the parties regarding lost information, however inconsequential, rather than a full and fair opportunity to address the merits of a dispute. Thus, Magistrate Judge Francis held that sanctions are only appropriate if the inadequate preservation efforts resulted in the destruction of “discovery-relevant” materials.

The law on sanctions, spoliation and preservation efforts favors a factored analysis approach to the imposition of sanctions, rather than a categorical approach that ignores culpability or the lack of any real damage to the innocent party. Thus, most courts have held that sanctions for the destruction of ESI data should be dictated by circumstances of individual cases and should only be imposed if discovery relevant material has been destroyed. Nonetheless, this contrast of opinions between two highly respected jurists and e-discovery specialists from the same jurisdiction highlights the controversial and constantly evolving nature of these principles, and cautions that the most prudent course is to always engage in broad, methodical and well-documented preservation practices.

The proposed rule is not without some criticism. Although adverse parties would theoretically be able to move to vacate or modify the order, some of the panelists expressed concern with binding potential parties over whom jurisdiction has not yet been established, and requiring them to seek redress from the Court before having even been sued. Also, the proposed rule leaves gray areas as to what constitutes an occurrence of “sufficient magnitude to make related litigation probable” or whether a party’s actions were taken in anticipation of asserting or defending against a claim. Judge Peck posited that the rule would increase the burden on courts, which would need to address preservation issues before litigation even began.

While there are no easy answers, most judges and litigators agree that steps should be taken towards establishing some uniformity and predictability in the area of document preservation. The devil, of course, is in the details, and we can expect the debate on how to best address these issues to continue for some time.

Paul E. Asfendis is an Associate on the Gibbons E-Discovery Task Force.

Among the specific advice to parties in the guidelines is:

• Take a collaborative approach to the identification, location and preservation of potentially relevant ESI by specifically including in the discussion regarding the preservation processes an appropriate representative from the party's information technology function (if applicable);
• Develop written instructions for the preservation of ESI and distribute those instructions (as well as any updated, amended or modified instructions) in the form of a litigation hold notice to the custodians of potentially relevant ESI; and
• Document the steps taken to prevent the destruction of potentially relevant ESI.

This guidance from one of the country’s most influential state courts comports with now longstanding guidelines issued by other courts and standard setting organizations like The Sedona Conference^®, and with the mandates of the Federal Rules of Civil Procedure. Significantly, however, on the heels of the recent Pension Committee opinion out of the Southern District of New York, the Court of Chancery now adds another voice to the building consensus that preservation activities, including specifically litigation hold notices, should be documented in all cases. The Court of Chancery Rules Committee is continuing to monitor the broader topic of ESI discovery and has not yet proposed specific rules or guidelines as to electronic discovery in general.

Jeffrey L. Nagel is a Director on the Gibbons E-Discovery Task Force.

While the first and second mechanisms pertain to the courts’ rule-making authority, the third mechanism -- application of the Erie doctrine -- offers a practical approach founded upon existing jurisprudence. Under the Erie doctrine, unless there is an express federal law or regulation addressing the retention and/or the destruction of particular ESI, state law would govern the pre-litigation duty to preserve ESI, the scope of the duty, when the duty is triggered, the breach of the duty and the imposition of sanctions. The main issue is whether the general pre-litigation duty to preserve ESI would be considered procedural or substantive in nature. If New York courts were to interpret ESI duties as substantive, then under the Erie doctrine, New York state and federal courts would be bound to apply New York common law as it applies to pre-litigation preservation of ESI and spoliation of evidence sanctions. Application of the Erie doctrine is well-reasoned because the duty to preserve ESI, like the substantive rules espoused by Erie, is grounded in the common law obligation to preserve evidence and the substantive obligation of litigants to avoid tortious conduct. Although there is disagreement among the other federal circuits regarding the application of Erie to the pre-litigation duty to preserve ESI, the panel nonetheless encouraged arguments favoring the Erie doctrine because the Supreme Court had not yet ruled on the issue, suggesting that federal courts in New York would consider the Erie doctrine’s sound and reasoned approach to resolving the potential conflicts between New York state and federal law.

The Court found that the text messages were discoverable under the Jencks Act, 18 U.S.C. § 3500, and Federal Rule of Criminal Procedure 26.2 and should have been preserved and produced. The Court declined to impose the harsh sanction of suppressing Dwek’s testimony and all tape recordings in which he participated, but carefully analyzed the propriety of giving the jury one of various forms of adverse inference instructions. Consulting the Honorable Shira A. Scheindlin’s decision in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010) (corrected in part by Order dated May 28, 2010), the Court ordered the most “flexible” and “least harsh” adverse inference instruction: permitting, but not requiring, the jury to presume that the lost text messages were both relevant and favorable to defendants, but mandating that the jury consider rebuttal evidence on these issues. The Court acknowledged that, although defendants were clearly prejudiced in their ability to impeach the government’s cooperating witness, there was “little evidence” to suggest that the government acted in bad faith. On October 27, 2010, the jury acquitted defendant Suarez on all counts (conspiracy to commit extortion, attempted extortion and bribery) and convicted defendant Tabbachino of attempted extortion and bribery.

As with all decisions imposing sanctions for spoliation of evidence, U.S. v. Suarez underscores the critical importance of promptly issuing a litigation hold and properly preserving evidence. Failure to discharge these now well established duties, even absent bad faith, can result in severe sanctions that may negatively impact the prosecution of a case, both in the criminal and the civil context.

Jennifer Marino Thibodaux is an Associate in the Gibbons Business & Commercial Litigation Department & a member of the Gibbons E-Discovery Task Force.