New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

So you’ve received a litigation hold letter demanding that you cease from destroying any evidence. One of the first questions that comes to mind is - “Do I need to comply?” Essentially, a litigation hold letter requests that the recipient (either an individual or company) cease from destroying any documents, both physical and electronic, that may be relevant to litigation. The litigation may be currently pending or the party may be threatening future action. Compliance with the letter depends upon whether you: (1) are a party to the pending litigation; (2) are a non-party to a pending litigation; or (3) anticipate being made a party to a lawsuit.

 

If you are a party to a pending litigation, you must comply with the request in order to prevent the destruction of any documents that could be relevant to the pending litigation. Failure to comply with the litigation hold letter may lead to sanctions. See F.R.C.P. 37(b).

 

Generally, if you are not a party to a pending litigation, then there is no duty to preserve the evidence. Conversely, one would have a duty to preserve the evidence if they anticipated being made a party to a lawsuit. In re NTL Sec. Litig., 244 F.R.D. 179, 194 (S.D.N.Y. 2007). A party or anticipated party must retain all relevant documents in existence at the time the duty to preserve attaches, and any relevant documents created thereafter. Id. at 194. The obligation to preserve evidence arises when the party has “noticed that the evidence is relevant to litigation – most commonly when suit has already been filed” or when a party should have known that the evidence may be relevant to future litigation. Orbit One Commc’n, Inc. v. Numerex Corp., 271 F.R.D. 429, 436 (S.D.N.Y. 2010). Thus, if a party anticipates litigation, then the duty to preserve evidence relevant to the litigation attaches. Accordingly, once litigation is filed, a party in the action who destroyed evidence prior to the issuance of a discovery order may still be sanctioned by the court. See F.R.C.P. 37(b). 

 

In order to determine whether you should comply with a litigation hold letter, it is advised that you consult with an attorney to formulate the necessary response.

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You are more than likely one of the 500 million active users on Facebook who willingly choose to share your comments, pictures, and status updates with friends and family.  It is easy to lose sight of the gross reality that our “second self,” or our presence on the Internet, is anything but private.   The belief that one retains a privacy interest in their social networking accounts is being dispelled by a recent decision in the Pennsylvania Court of Common Pleas of Jefferson County. 

 

In McMillen v. Hummingbird Speedway, Inc., a personal injury action, the defendant questioned in a set of interrogatories whether the plaintiff belonged to any social networking sites and to provide plaintiff’s usernames, login names, and passwords. McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010).  Upon reviewing the public portion of plaintiff’s Facebook account, the defendant discovered comments relating to relevant facts surrounding the litigation.  Plaintiff’s counsel claimed confidentiality or privilege to the information.  Defendant then moved to compel discovery, arguing that the areas to which they did not have access could contain further comments which would impeach or contradict plaintiff’s disability and damages claims.  Plaintiff contended that the court should recognize communications “shared among one’s private friends on social network computer sites as confidential and thus protected against disclosure.”  A “social network site privilege” has not been recognized under Pennsylvania statute or case law.  President Judge John Henry Foradora found that while people use these forums, such as Facebook, MySpace, and their counterparts to seek advice on personal and private matters, “it would be unrealistic to expect that such disclosures would be considered confidential.”  After careful review of the privacy and disclosure policies of Facebook and MySpace, the court concluded that the users are on notice that their communications posted may be revealed to third-parties.  Accordingly, the court held that access to one’s social networking sites is not protected by any privilege.  As a result, plaintiff was compelled to turn over his usernames and passwords of his Facebook and MySpace accounts to defendant’s counsel.

 

Likewise, in Romano v. Steelcase Inc. a New York Suffolk County Supreme Court ordered plaintiff to sign an authorization permitting the defendant to access her Facebook and MySpace accounts, including any records previously deleted or archived. Romano v. Steelcase Inc., N.Y.S.2d 650 (N.Y. Sup. Ct. 2010).  In a personal injury action, defendant found pictures of plaintiff on her Facebook and MySpace accounts that yielded relevant information regarding damages and the extent of plaintiff’s injuries.  Acting Justice Jeffrey Arlen Spinner rejected plaintiff’s arguments that it violated her Fourth Amendment right to privacy.  In analyzing the websites privacy policies, the court found users are aware that they post content to the sites at their “own risk.” 

 

In light of these two decisions, it becomes increasingly apparent that courts are not willing to recognize a privacy interest in one’s accounts on social networking sites.  So remember, everything can become public.

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