Novack and Macey Logo

News

  • November 4th, 2014--Monte Mann’s “Illinois Business Divorce Report” Blog Discusses the Discounted Cash Flow Method of ValuationMore
  • November 3rd, 2014--Andrew P. Shelby Discusses Electronically Stored Information and How Failure to Preserve It Could Be Costly to Your Business in the Event of a LawsuitMore
  • October 3rd, 2014--Steve Siegel Quoted in ABA Litigation News on Case of First Impression on Defamation Claims for Content Posted by Third PartiesMore
  • October 2nd, 2014--Michael Weinberg Reminds Businesses of the Importance of Written AgreementsMore
  • September 23rd, 2014--Monte Mann Discusses Valuation of Minority Interests in Closely Held Businesses in the Illinois Business Divorce ReportMore
  • September 22nd, 2014--Matt Singer Joins Novack and Macey LLP as a Litigation AssociateMore
  • September 2nd, 2014--Tim Miller Tells Clients to Be Proactive in Stopping Legal Malpractice Before It StartsMore
  • August 25th, 2014--Novack and Macey Attorneys Help Their Client, a Japanese Corporation, Defeat an Asset Freeze Order in the U.S. District Court for the Western District of WashingtonMore
  • August 22nd, 2014--Chris Moore Organizes New Chicago Attorney Motorcyclists Group; 1st Group Ride Sept. 14More
  • August 21st, 2014--Brian Cohen Joins Evanston School Children’s Clothing Association BoardMore
  • August 19th, 2014--Eric Macey Quoted in Chicago Tribune on Lawsuit Against Singer R. KellyMore
  • August 18th, 2014--Steve Ciszewski Elected to the University of Illinois College of Law Alumni BoardMore
  • August 14th, 2014--Princeton Intern Changes His Mind About Law, Likens It to “An Exciting Chess Match” After Visiting Novack and Macey LLPMore
  • August 13th, 2014--A Court May Dissolve a Partnership If Partner “Freeze Out” Occurs: Illinois Business Divorce Report Blog by Monte MannMore
  • August 13th, 2014--Chicago Daily Law Bulletin Writes About Chris Moore and the Chicago Attorney Motorcyclists (CAM) Group; Kick-Off Meeting August 18 at Novack and MaceyMore
  • August 12th, 2014--Novack and Macey Helps Raise $1.3 Million for the Chicago Bar Foundation’s 2014 “Investing in Justice Campaign”More
  • August 11th, 2014--Novack and Macey’s “Small but Mighty” Tag Line Recognized as One of the Top 20 in the Legal IndustryMore
  • August 7th, 2014--Josh Liebman Says That Narrow Arbitration Provisions Can Be Used To Preserve Litigation Where It Is the Preferred OptionMore
  • August 6th, 2014--Tim Miller Will Discuss Ethics Issues in Outsourcing Critical Services at a Practising Law Institute Seminar on September 29-30, 2014 in ChicagoMore
  • July 7th, 2014--Eric Macey Helps Panicked Friend Who Learns Her Father Is in Prison in AfricaMore
  • July 1st, 2014--Employers Who Draft Overly Ambitious Noncompetition Agreements for Employees to Sign May Be Asking for Trouble, Says Attorney Shelby DruryMore
  • June 26th, 2014--Novack and Macey Attorney Monte L. Mann Authors Blog on Business DivorceMore
  • June 25th, 2014--Steve Siegel Quoted in ABA Litigation News on Case Challenging FTC’s Authority to Sue Merchants for Data BreachesMore
  • June 11th, 2014--Seventh Circuit Panel Affirms Novack and Macey Victory for Donald Trump and the Trump OrganizationMore
  • June 6th, 2014--Could Your Website Cause Your Business to be Sued in Another State? Amanda M.H. Wolfman Says You Could be at RiskMore
  • June 5th, 2014--Mitch Marinello Named to Faculty of “Managing a Successful Arbitration”More
  • May 30th, 2014--Novack and Macey Attorneys Win Complete Victory in Putative Class Action under Fair Labor Standards Act and Illinois Minimum Wage LawMore
  • May 28th, 2014--Novack and Macey, Steve Novack Ranked in 2014 Chambers USAMore
  • May 23rd, 2014--Steve Siegel Quoted in ABA Litigation News on Recent Utah Supreme Court DecisionMore
  • May 22nd, 2014--Steve and Ilene Novack Featured in University of Missouri St. Louis PublicationMore
  • May 2nd, 2014--Better Email Habits in the Workplace Reduce Litigation Costs and Exposure, John Shonkwiler explainsMore
  • April 23rd, 2014--Christopher S. Moore Named Co-Editor of ABA’s Section of Litigation ADR WebsiteMore
  • April 18th, 2014--Steve Siegel Quoted in United States Law Week on Civil Procedure and the Abstention DoctrineMore
  • April 4th, 2014--Amendment to Illinois Internet Defamation Law Drafted by Novack and Macey Attorneys Passes State House of Representatives; Heads to SenateMore
  • April 2nd, 2014--John Haarlow Talks About the Wage Payment Act, Employer Liability and the Possibility of Personal Liability If a Claimant PrevailsMore
  • March 28th, 2014--Novack and Macey Wins Appeal in Case of First ImpressionMore
  • March 21st, 2014--An Important Video Message To Businesses from a Litigation Attorney: Treat Email Like Paper to Reduce Litigation Costs and RisksMore
  • March 21st, 2014--Eric Macey Defends Client’s Right to Protect Unique Business PracticesMore
  • March 20th, 2014--John Shonkwiler Co-Chairs Chicago Lights Charity Event, Raising Over $450,000 for Outreach to Those Facing the Challenges of PovertyMore
  • March 12th, 2014--“Fighting anonymous online defamation” by Mitchell Marinello and Andrew ShelbyMore
  • March 11th, 2014--Steve Siegel Quoted in ABA Litigation News on Recent Supreme Court Decision on Abstention DoctrineMore
  • March 10th, 2014--Shelby Drury and Elizabeth Wolicki Honored by LAF as Volunteers of the YearMore
  • March 5th, 2014--Adam Waskowski Discusses the Importance of Expert Witnesses in Business LitigationMore
  • March 4th, 2014--Novack and Macey Wins Breach of Fiduciary Duty, Misappropriation of Trade Secrets Case for Plas-Tool Co. After Jury Trial in District CourtMore
  • February 25th, 2014--2014 Brings New Charitable Commitments for Novack and Macey AttorneysMore
  • February 21st, 2014--John Shonkwiler Explains How to Improve E-Mail Habits, Cut Legal Bills and ExposureMore
  • February 20th, 2014--Steve Siegel Quoted in ABA Litigation News on Recent Whistleblower DecisionMore
  • February 10th, 2014--Marinello and Shelby Advocate Changes in Illinois Law on Internet Defamation; Chicago Bar Association Agrees and Will Sponsor LegislationMore
  • February 4th, 2014--Monte L. Mann offers pointers on lowering business litigation costsMore
  • January 21st, 2014--Josh Liebman and Adam Waskowski Elevated to Partner at Novack and Macey LLPMore
  • January 13th, 2014--Kristen Werries Collier Named to Top 50 2014 Women Illinois Super LawyersMore
  • January 13th, 2014--Novack and Macey Are Top 100 Super Lawyers for the Third Consecutive Year; Collier Is a "Top 50" Women Super Lawyer; 15 Others Are Super Lawyers and Rising StarsMore
  • January 4th, 2014--Brian Cohen explains how to resolve legal disputes through arbitration and mediationMore
  • December 3rd, 2013--Christopher G. Dean offers insight into enforcing an unsigned contractMore
  • November 20th, 2013--Novack and Macey Obtains a Complete Defense Verdict for its Client in a Pennsylvania CourtMore
  • November 8th, 2013--“Small Business and the Corporate Opportunity Doctrine”More
  • November 6th, 2013--Steve Siegel Finds Wide-Ranging Implications for Future Litigation against Payment Networks in Federal Court Decision, “Genesco, Inc. v. Visa, U.S.A., Inc.”More
  • November 1st, 2013--Eric Macey Describes How Understanding Damages is Critical in Commercial LitigationMore
  • October 21st, 2013--Mitchell L. Marinello Named Vice Chair of ABA Section of Litigation’s Alternative Dispute Resolution CommitteeMore
  • October 18th, 2013--Steve Novack, John Shonkwiler Receive 2013 Jury Verdict Reporter Awards for Their Trump Case VictoryMore
  • October 11th, 2013--Novack and Macey Achieves 100% Participation in the University of Illinois “Law Firm Challenge”More
  • October 10th, 2013--Julie Johnston-Ahlen Explains How to Keep Money Paid by a Bankrupt CustomerMore
  • October 1st, 2013--Richard G. Douglass Honored as One of Illinois’s “40 Under Forty” Attorneys to WatchMore
  • October 1st, 2013--John Shonkwiler elevated to Hearing Officer by Chicago Bar Association’s Judicial Evaluation CommitteeMore
  • September 27th, 2013--Mitchell L. Marinello named to Resolution Systems Institute Board of DirectorsMore
  • September 23rd, 2013--ABA Publishes Christopher Moore’s Article on Substantive vs. Procedural ArbitrabilityMore
  • September 23rd, 2013--Timothy J. Miller Authors “Ethical Conundrums” in Practising Law Institute HandbookMore
  • August 23rd, 2013--Court Denies Motion for a New Trial in Jacqueline Goldberg v. Trump Condo DisputeMore
  • August 22nd, 2013--Monte L. Mann Named Fellow of Litigation Counsel of AmericaMore
  • August 9th, 2013--Stephen Siegel Named Co-Chair of ABA Section of Litigation’s Commercial and Business Litigation CommitteeMore
  • August 1st, 2013--ABA Publishes Mitch Marinello’s Article on Ninth Circuit Case “Murphy v. Direct TV,” Decided in the Wake of Confusion over “Discover Bank v. Superior Court “More
  • August 1st, 2013--What to Do When a Mistake Changes the Meaning of an Agreement? Rebekah Parker Explains in the August 2013 Issue of Smart Business ChicagoMore
  • July 23rd, 2013--ABA Publishes Article by Elizabeth Wolicki on Supreme Court Decision Upholding an Arbitrator’s Authorization of a Class ActionMore
  • July 16th, 2013--Novack and Macey Wins Judgment for Sears Holdings Management Corp.More
  • July 9th, 2013--ABA Publishes Amanda Hinkley’s Article on “Who Decides Whether a Dispute is to be Arbitrated—the Court or the Arbitrator”More
  • July 1st, 2013--Avoid costly and time-consuming disputes by drafting effective arbitration clauses, advises Courtney Tedrowe in Smart Business ChicagoMore
  • June 21st, 2013--Novack and Macey’s Successful Defense of Legal Malpractice Case Culminates in Unanimous Seventh Circuit DecisionMore
  • June 19th, 2013--ABA Publishes Article by Chris Moore on Texas Supreme Court’s Enforcement of an Arbitration Clause in a Trust AgreementMore
  • June 6th, 2013--Novack and Macey Attorneys Mitch Marinello and Tim Miller Present IICLE Webcast on “Ethics in the Federal Courts” from 12 to 1 pm on June 13, 2013More
  • June 1st, 2013--Shelby Drury Explains “How to Incorporate Agreements and Promises into Written Contracts” in Smart Business Chicago MagazineMore
  • May 23rd, 2013--Novack and Macey Wins Seventh Circuit Decision in Favor of the Trump Tower Chicago DeveloperMore
  • May 23rd, 2013--Victorious Federal Jury Verdict Draws National Attention to Novack and MaceyMore
  • May 1st, 2013--Andrew Campbell Explains “How to Negotiate Exclusivity Provisions in Commercial Leases” in Smart Business Chicago MagazineMore
  • April 30th, 2013--Novack and Macey Attorneys Chris Moore and Adam Waskowski Present IICLE Webcast on Federal Practice from 12 to 1 pm on May 9, 2013More
  • April 23rd, 2013--ABA Publishes Shelby Drury’s Article on the Effect of an Arbitrator’s Undisclosed Concurrent ServiceMore
  • April 18th, 2013--Steve Siegel Co-Chairs ABA Annual Conference for Litigators, April 24 to 26, 2013 in ChicagoMore
  • April 16th, 2013--Mitchell L. Marinello Admitted to the College of Commercial ArbitratorsMore
  • April 16th, 2013--Steve Ciszewski Tells Newer Attorneys “How to be Successful in the Law” in CBA Seminar Featuring “40 under Forty” HonoreesMore
  • April 8th, 2013--ABA Publishes Article by Amanda Hinkley on the Mediation Confidentiality RuleMore
  • April 1st, 2013--“Intellectual Property: How Trade Secrets Are Often Overlooked When Deciding What to Protect” by P. Andrew FlemingMore
  • March 18th, 2013--Marinello and Shelby: Laws on Internet Defamation Need to ChangeMore
  • March 15th, 2013--Novack and Macey Attorneys Liebman, Marinello, Tedrowe and Moore Present Federal Practice WebinarsMore
  • March 14th, 2013--Mitch Marinello Writes About Recent Illinois Supreme Court Decision That Gives Deference To An Arbitration AwardMore
  • March 13th, 2013--Steve Ciszewski Tells Businesses: Don’t Let Your “Comprehensive” Insurance Policies Give You a False Sense of SecurityMore
  • March 8th, 2013--Mitchell Marinello Named to the National Academy of Distinguished NeutralsMore
  • February 21st, 2013--Timothy J. Miller Named General Counsel of Novack and Macey LLPMore
  • February 18th, 2013--Amanda M. Hinkley Joins Novack and Macey LLP as a Litigation AssociateMore
  • February 12th, 2013--Kristen Werries Collier Cautions Businesses to “Vigilantly Monitor and Evaluate their Cyber-Security Safeguards” in Interview with Smart Business Chicago MagazineMore
  • February 5th, 2013--Steve Novack Argues 3 Times in 50 Days Before the 7th Circuit–He Tells Chicago Lawyer Magazine How He Did ItMore
  • January 28th, 2013--Tim Miller Argues Against Derivative Legal Malpractice in the Illinois Bar JournalMore
  • January 24th, 2013--Marinello, Moore Organize and Present Webinar Series on Federal PracticeMore
  • January 18th, 2013--ABA Publishes Brian E. Cohen’s Article on Amendable Arbitration ClausesMore
  • January 15th, 2013--ABA Publishes Elizabeth Wolicki’s Article on 11th Circuit’s Holding: A Foreign Arbitration Panel Is a TribunalMore
  • January 4th, 2013--17 Attorneys Selected as 2013 Super Lawyers and Rising Stars; Steve Novack and Eric Macey Are Again Named to the List of Illinois Top 100 Super LawyersMore
  • January 3rd, 2013--John Shonkwiler Explains How “Reflex” Email Habits Can Lead to Costly LitigationMore
  • December 19th, 2012--“Small but Mighty” Litigation Boutique Scores Eight Appellate Victories in 2012More
  • December 1st, 2012--Michael A. Weinberg Warns Businesses that the Corporate Form May Not Be a Sufficient Shield When Creditors Seek a Corporate Veil-Piercing RemedyMore
  • November 6th, 2012--Michael Weinberg Elected to University of Michigan Club of Greater Chicago’s Board of DirectorsMore
  • October 31st, 2012--University of Illinois Law Alumni Board to Meet at Novack and Macey LLPMore
  • October 29th, 2012--ABA’s “Business Law Today” Publishes Stephen J. Siegel’s Article About the Restraints on a Stock Issuer’s Options in Employee DisputesMore
  • October 19th, 2012--Victory on Appeal in “Landmark” ERISA Decision by Fifth Circuit CourtMore
  • October 16th, 2012--Kristen Werries Collier, 2011 “40 Under Forty” Honoree, Shares Advice on Professionalism, People Skills and NetworkingMore
  • October 11th, 2012--Appellate Victory For Novack and Macey LLP’s Real Estate Developer Client in Billboard Lease DisputeMore
  • October 3rd, 2012--Steve Ciszewski on the Illinois “40 Under Forty” Most Talented Young Attorneys ListMore
  • October 2nd, 2012--Tim Miller Presents PLI Seminar on Ethics Issues in Negotiating Sourcing DealsMore
  • October 1st, 2012--Tim Miller Discusses the Responsibilities and Risks of Serving on a Corporate Board of Directors in “Smart Business Chicago”More
  • September 27th, 2012--Josh Liebman Elevated to the Board of the Jewish Council for Youth ServicesMore
  • September 21st, 2012--Elizabeth C. Wolicki Joins Novack and Macey LLP as a Litigation AssociateMore
  • September 21st, 2012--Brian E. Cohen Joins Novack and Macey LLP as a Litigation AssociateMore
  • September 14th, 2012--Mitchell Marinello Elected to Board of Directors of the Federal Bar Association, Chicago ChapterMore
  • September 7th, 2012--Smart Business Interviews Eric Macey on How Businesses Can Decide Whether to Use Arbitration to Resolve Business DisputesMore
  • September 6th, 2012--Illinois Bar Journal Publishes Article on “Recovering Attorney Fees for Defending Frivolous Claims” by Monte L. Mann and John B. Haarlow, Jr.More
  • September 1st, 2012--“Recovering Attorney Fees for Defending Frivolous Claims” by Monte L. Mann and John B. Haarlow, Jr.More
  • August 21st, 2012--Michael Weinberg Interviewed by Law Bulletin on his Dickens Collection and its Exhibition to Commemorate the Bicentennial of the Author’s BirthMore
  • August 20th, 2012--IICLE Recognizes Novack and Macey Volunteers as “Exceptional Writers” of Civil-Litigation MaterialsMore
  • August 8th, 2012--Tim Miller Named to Faculty of PLI Seminar on Ethics Issues in Negotiating Sourcing DealsMore
  • August 2nd, 2012--Josh Liebman Explains How Businesses Can Protect Trade Secrets during LitigationMore
  • July 30th, 2012--Novack and Macey LLP Helps Sponsor “The Working Lunch” of Women EmployedMore
  • July 24th, 2012--Illinois First District Appellate Court Affirms $7 Million Judgment in Favor of Novack and Macey’s Trust ClientMore
  • July 12th, 2012--IICLE Publishes 2012 Edition of “SmartEvidence: Commercial Litigation” by Novack and Macey Attorneys Mitch Marinello, Tim Miller and Rebekah ParkerMore
  • July 12th, 2012--ABA Publishes Mitchell Marinello’s Update on Mediator Sanctions for Demeanor ViolationsMore
  • July 3rd, 2012--Andrew Fleming Explains How to Prepare for a Deposition in an Interview with Smart Business Chicago MagazineMore
  • June 29th, 2012--ISBA Insurance Law Newsletter Features Article by Steve Ciszewski on the Targeted Tender Doctrine in IllinoisMore
  • June 11th, 2012--Steve Ciszewski Speaks at ISBA on Developments in Commercial General LiabilityMore
  • June 7th, 2012--Christopher Moore Authors Continuing Legal Education Handbook Chapter on Default and Default JudgmentMore
  • June 4th, 2012--John Haarlow, Jr. Explains How to Manage an Online Presence Using Trademarks and Domain NamesMore
  • June 1st, 2012--Federal District Court Denies Motion to Reconsider Order Dismissing Defamation Claim Against Court-Appointed ReceiverMore
  • June 1st, 2012--Marinello and Miller Contribute to 2012 “Trying the Case” HandbookMore
  • May 22nd, 2012--Novack and Macey Attorneys Win Emergency Relief for Corporate ClientMore
  • May 14th, 2012--Miller and Drury Contribute to 2012 Illinois Civil Practice HandbookMore
  • May 3rd, 2012--Novack and Macey LLP Collaborates with LAF to Represent Students in Special Education and School Disciplinary DisputesMore
  • May 3rd, 2012--Marinello Teaches CLE Course on “Deciding Whether to Put an Arbitration Clause in Your Fee Agreement”More
  • May 2nd, 2012--Adam Waskowski Gives Tips for Companies Negotiating Small Contracts Without the Assistance of a LawyerMore
  • April 24th, 2012--Christopher G. Dean Featured in Chicago Daily Law Bulletin’s “You Tell Us…” ColumnMore
  • April 23rd, 2012--Novack and Macey Defeats Summary Judgment on Behalf of Shareholder in Family-Owned BusinessMore
  • April 16th, 2012--Josh Liebman Featured in Chicago Daily Law Bulletin’s “You Tell Us…” ColumnMore
  • April 10th, 2012--Novack and Macey Wins Dismissal for Kohler Co.More
  • April 2nd, 2012--Monte Mann Suggests Six Tips to Avoid Business Litigation in Interview with Smart Business Chicago MagazineMore
  • March 30th, 2012--ABA Publishes Adam Waskowski’s Analysis of U.S. Supreme Court Decision on Federal Arbitration ActMore
  • March 28th, 2012--John Shonkwiler Named to Chicago Lights Board of DirectorsMore
  • March 28th, 2012--George Washington University Law School Magazine Recognizes Eric Macey as a Fellow of International Society of BarristersMore
  • March 28th, 2012--ABA Publishes Christopher Moore’s Article on Recent Second Circuit Decision Regarding Arbitration Class-Action WaiversMore
  • March 26th, 2012--Novack and Siegel Win Appeal and Defeat a Putative Class Action at its Onset, Before any Class Certification or Merits ProceedingsMore
  • March 26th, 2012--ABA Dispute Resolution Magazine Publishes Article by Mitchell Marinello on “What to Do When a Party Refuses to Pay Its Share of Arbitration Costs”More
  • March 17th, 2012--Eric Macey Argues Before Illinois Supreme Court on Damages for “Intrusion upon Seclusion”More
  • March 9th, 2012--Eric Macey Identifies Mentors and Fascination with Legal Nuances as Reasons for Becoming a LawyerMore
  • March 7th, 2012--Tim Miller Cautions Business Executives Who Blog: “Don’t Let the Informality Fool You”More
  • March 1st, 2012--Richard Douglass Explains How Businesses May Protect Social Media AccountsMore
  • February 15th, 2012--Marinello Comments on Seventh Circuit’s Affirmance of District Court’s Refusal to Intervene in ArbitrationMore
  • February 3rd, 2012--Christopher Moore Explains How a Business May Recover for an In-House Lawyer’s ServicesMore
  • January 25th, 2012--Steve Novack and Eric Macey Rank Among the Top 100 Illinois Super Lawyers for 2012More
  • January 16th, 2012--John Shonkwiler Explains How Improving E-mail Habits Can Help Reduce Litigation Costs and ExposureMore
  • January 10th, 2012--Campbell, Ciszewski, Johnston-Ahlen, Liebman, Shelby and Waskowski Are 2012 Illinois Rising StarsMore
  • January 10th, 2012--Fleming, Macey, Mann, Marinello, Miller, Novack, Shonkwiler and Tarkington Are 2012 Illinois Super LawyersMore
  • January 6th, 2012--Richard G. Douglass and Christopher S. Moore Elected to PartnerMore
  • January 5th, 2012--Illinois Supreme Court Makes Enforcement of Non-Competition Agreement Easier for EmployersMore
  • January 4th, 2012--Novack and Macey Named a 2012 “Go-To” Litigation Firm for Fortune 500 Companies Based on Monte Mann’s Representation of Cummins, Inc.More
  • January 3rd, 2012--Novack and Macey Named As a 2012 “Go-To” Litigation Firm for Fortune 500 Companies Based on Monte Mann’s Representation of Cummins, Inc.More
  • December 22nd, 2011--Novack and Macey Attorneys Obtain Dismissal of Arbitration ProceedingMore
  • December 12th, 2011--Courtney Tedrowe interviewed on mitigation of damages in business disputesMore
  • November 15th, 2011--Novack and Macey Receives “100% Participation Award” from the University of Illinois College of LawMore
  • November 11th, 2011--Andrew Campbell Discusses Privacy as it Relates to Personal E-Mails Sent through Employer-Owned Devices in Smart Business Chicago MagazineMore
  • November 10th, 2011--Marinello, Ciszewski and Berg Prevail for Client in Appeal of Arbitration AwardMore
  • November 10th, 2011--Marinello, Ciszewski and Berg Prevail for Client in Appeal of Arbitration AwardMore
  • October 14th, 2011--Partner Steve Ciszewski discusses recent developments in noncompete agreements in Smart Business ChicagoMore
  • October 13th, 2011--Siegel and Waskowski win summary judgment for client in lease disputeMore
  • October 10th, 2011--Eric Macey Advises Businesses: Don’t Let Technology Changes Put You at RiskMore
  • October 5th, 2011--Partner Kristen Werries Collier Is One of Illinois’ Top “40 under Forty” AttorneysMore
  • September 9th, 2011--Monte Mann’s Article on Electronic Discovery Published in Hedge Fund Law ReportMore
  • September 8th, 2011--Steve Siegel explains when and how to use ADR cost effectively to resolve legal conflictsMore
  • September 7th, 2011--Developer of Trump International Hotel & Tower, Chicago, Wins AppealMore
  • September 2nd, 2011--Tim Miller Discusses “Appeals from Judicial Criticism of Lawyers” in FBA’s SideBarMore
  • August 18th, 2011--Eric Macey Named to International Society of BarristersMore
  • August 4th, 2011--Kristen Werries Collier advises businesses to create a social media policyMore
  • July 25th, 2011--Novack, Tedrowe and Shelby Win for their Client as Putative Class-Action Claim is Dismissed in Federal CourtMore
  • July 15th, 2011--Steve Siegel Appointed to Co-Chair 2013 ABA Litigation Section ConferenceMore
  • July 14th, 2011--E-Discovery Attorney Marie Lim Named to Seventh Circuit Electronic Discovery Pilot Program CommitteeMore
  • July 8th, 2011--Kohler Affirmed by Appellate Court on Jury Trial QuestionMore
  • July 7th, 2011--Michael Weinberg Tells Businesses to Update Forms and Contracts at Least BiannuallyMore
  • June 20th, 2011--Monte Mann Wins Summary Judgment for Great Lakes Vessel Operators in Challenge to Illinois EPA RegulationsMore
  • June 17th, 2011--Illinois Law School Dean Recognizes 100% Participation in Fund-Raising CampaignMore
  • June 9th, 2011--E-Discovery Attorney Marie Lim Chairs Program on Electronically Stored InformationMore
  • June 2nd, 2011--Novack and Macey Attorneys Mann, Waskowski and Stanton Win Preliminary Injunction to Protect Client’s Trade SecretsMore
  • June 1st, 2011--Managing Partner Don Tarkington discusses “Safeguarding Trade Secrets” in Smart Business Chicago magazineMore
  • May 27th, 2011--Berg Publishes Article on Protective OrdersMore
  • May 26th, 2011--Appellate Court Affirms Trial Court’s Decision for Novack and Macey Client on Breach of Limited Partnership ClaimMore
  • May 2nd, 2011--Miller Interviewed on How Businesses Can Obtain Emergency ReliefMore
  • April 22nd, 2011--Attorneys Siegel and Douglass Successfully Resolve a Multi-Million Dollar Claim for an Alternative Retail Electricity SupplierMore
  • April 22nd, 2011--Novack and Macey Achieves 100% Participation in the University of Illinois “Law Firm Challenge”More
  • April 2nd, 2011--Novack and Macey Attorneys Support the Lawyers-Lend-A-Hand-to-Youth ProgramMore
  • April 1st, 2011--Novack and Macey LLP’s Recent Supreme Court Victory Is the Latest in a String of Victories on Behalf of Its Clients in Illinois Reviewing CourtsMore
  • April 1st, 2011--Timothy J. Miller advises business executives on what to do when considering, and entering into, a settlement agreementMore
  • March 25th, 2011--Eric Macey Quoted in StreetWise on The Posse FoundationMore
  • March 14th, 2011--Kristen Werries Collier Elevated to Partner at Novack and Macey LLPMore
  • March 10th, 2011--The Posse Foundation Recognizes Eric Macey as a “Leader, Energizer and Spokesman”More
  • March 9th, 2011--Siegel and Douglass Win Natural Gas ArbitrationMore
  • March 2nd, 2011--Smart Business Chicago Interviews Mitchell Marinello on Internet defamationMore
  • February 7th, 2011--Novack and Macey Partner Monte Mann Wins Appeal for Third-Party Administrator of Pension PlansMore
  • February 3rd, 2011--Marinello and Douglass Defeat FDIC Challenge to Law Firm’s Lien ClaimsMore
  • February 1st, 2011--Smart Business Chicago Interviews Andrew Fleming on Illinois Rules of EvidenceMore
  • January 21st, 2011--Macey and Tedrowe Win Appeal for Client in Multi-Million-Dollar CaseMore
  • January 12th, 2011--Federal Court Relies on Article Authored By Miller and HaarlowMore
  • January 6th, 2011--Smart Business Chicago Interviews Monte Mann on Lender LiabilityMore
  • January 5th, 2011--Fleming, Macey, Mann, Marinello, Miller, Novack, Shonkwiler and Tarkington Are 2011 Illinois Super LawyersMore
  • January 5th, 2011--Campbell, Ciszewski, Collier, Johnson-Ahlen and Towbin Are 2011 Illinois Rising StarsMore
  • December 16th, 2010--Andrew Campbell, Christopher Moore Serve on Faculty of “Basic Contract Drafting” Seminar for Continuing Legal Education InstituteMore
  • November 22nd, 2010--Novack and Macey Named One of the “Go-To” Litigation Firms for Fortune 500 Companies Based on Monte Mann’s Representation of Cummins, Inc.More
  • October 25th, 2010--Novack and Macey LLP Joins The Institute for Energy LawMore
  • October 18th, 2010--Avoiding the Innocent Spoliation of EvidenceMore
  • October 7th, 2010--Eric N. Macey to Speak at 2010 Case Examination ConferenceMore
  • September 14th, 2010--Collier, Hirshfeld and Johnston-Ahlen Named as Novack and Macey Delegates to the Coalition of Women’s Initiatives in Law FirmsMore
  • September 14th, 2010--Marinello and Haarlow Author Article in Illinois Bar Journal on “Nonparty Discovery Under the Federal Arbitration Act”More
  • August 31st, 2010--Developer of Trump International Hotel & Tower, Chicago Wins — TwiceMore
  • August 26th, 2010--Steve Siegel To Co-Lead ABA Panel Discussion on In-House/Outside Counsel RelationshipsMore
  • August 25th, 2010--Chicago Daily Law Bulletin: Novack and Macey Marketing Manager Nancy Dove is an Attorney who Became a Full-Time MarketerMore
  • August 13th, 2010--Novack and Macey Attorneys Effect Settlement Following Powerful OpeningMore
  • August 5th, 2010--Marie V. Lim Represents Novack and Macey LLP at E-Discovery ColloquiumMore
  • August 3rd, 2010--Novack and Macey LLP Attorneys Collect Gently-Used Women’s Business Clothing for “Poised for Success”More
  • August 1st, 2010--“E-commerce and you: How e-mail and other online technology impact contract issues” by Courtney D. TedroweMore
  • July 29th, 2010--Partners Siegel and Miller Prevail Quickly in Avoiding Enforcement of a Detrimental Signed AgreementMore
  • July 26th, 2010--Steve Siegel Re-Appointed to the Leadership Team of the ABA’s Section of LitigationMore
  • July 1st, 2010--ABA Litigation Section Recognizes Firm’s Support of Intern Program; Eric Macey and Kristen Werries Collier Speak at Intern OrientationMore
  • June 25th, 2010--Monte Mann Wins $21.7 Million Judgment for Client Ryder TruckMore
  • June 8th, 2010--Monte Mann Serves on Faculty of 2010 Annual Discovery & E-Discovery ConferenceMore
  • June 7th, 2010--Novack and Macey Obtains Arbitration VictoryMore
  • June 1st, 2010--Steve Ciszewski Interviewed by Smart Business Chicago on the Importance of Liability InsuranceMore
  • May 28th, 2010--Illinois Limited Liability Company Act Implicated in a Hard-Fought Victory by Marinello and DeanMore
  • May 26th, 2010--“Avoiding the Innocent Spoliation of Evidence” by Richard L. Miller II and Kristen Werries CollierMore
  • May 20th, 2010--Novack and Macey’s E-Discovery Attorney Marie Lim Follows Trends in Emerging Practice AreaMore
  • May 19th, 2010--Novack and Macey Defeats Warranty ClaimsMore
  • May 17th, 2010--Novack and Macey Wins Dismissal of Claims of Breach of Fiduciary, Contractual and Other Duties– With PrejudiceMore
  • May 17th, 2010--Novack and Macey Attorneys Marinello and Dean Win Dismissal of Claims of Breach of Fiduciary, Contractual and Other Duties– With PrejudiceMore
  • May 13th, 2010--Chicago Bar Foundation Recognizes Novack and Macey for “Investing in Justice” CampaignMore
  • May 13th, 2010--Novack and Macey Supports Chicago Bar Foundation’s “Investing in Justice” CampaignMore
  • April 6th, 2010--Novack and Macey Scores Hard-Fought Summary Judgment VictoriesMore
  • April 5th, 2010--Marinello and Miller Named IICLE “Most Valuable Contributors” for 2010More
  • April 1st, 2010--Campbell Interviewed by SmartBusiness Chicago on the Fiduciary Shield DoctrineMore
  • February 27th, 2010--Novack and Macey Scores Victory for Developer River RoadMore
  • January 19th, 2010--Novack and Macey Wears Jeans to Raise Funds for Haiti Relief EffortMore
  • January 16th, 2010--Novack and Macey Attorneys Again Selected as Super Lawyers and Rising StarsMore
  • January 15th, 2010--Cummins Inc. Selects Novack and Macey as a “Go-To” Law Firm for Litigation MattersMore
  • April 13th, 2009--Even on Appeal, CIB Bank Cannot Defeat Novack and MaceyMore
  • April 3rd, 2009--Mighty Rewards for Big Campaign: Novack and Macey is an LMA Your Honor Awards Winner!More
  • March 31st, 2009--Novack and Macey Successfully Defeats Motion to Dismiss RICO ClaimMore
  • February 16th, 2009--David Beats Goliath…AgainMore
  • January 5th, 2009--Novack and Macey Welcomes Two New PartnersMore
  • December 1st, 2008--Novack and Macey: A “Law Firm’s Law Firm”More
  • October 10th, 2008--Novack and Macey Wins Dismissal of Complaint Against Its ClientMore
  • September 26th, 2008--Novack and Macey Wins Remand Battle for Electric Power GridMore
  • September 25th, 2008--Novack and Macey to host the IAG International Conference October 2-4, 2008More
  • September 25th, 2008--Partner Steve Siegel Speaks at 2008 ABA Editors’ SymposiumMore
  • August 22nd, 2008--Novack and Macey Defeats Motion for TRO and Pre-Judgment AttachmentMore
  • August 22nd, 2008--Novack and Macey Defeats Motion for TRO and Pre-Judgment AttachmentMore
  • July 22nd, 2008--Novack and Macey Supports ABA Judicial Intern Opportunity ProgramMore
  • July 14th, 2008--Eric Macey Selected President of The Chicago-Lincoln American Inn of CourtMore
  • June 29th, 2008--Novack and Macey Obtains Arbitration VictoryMore
  • June 18th, 2008--Novack and Macey Wins Dismissal in Software License and Copyright DisputeMore
  • June 12th, 2008--Novack and Macey Attorneys are Rising StarsMore
  • June 5th, 2008--Oaks Improvements LLC Development vs. Lucky Fella, LLCMore
  • June 5th, 2008--Elgin Improvements LLC vs. Ray Remzi-UseimiMore
  • June 5th, 2008--Drury and Werries Collier Promoted to Of CounselMore
  • June 4th, 2008--Motion to Dismiss Complaint Against Novack and Macey’s Clients GrantedMore
  • June 2nd, 2008--Firm Tries Hot Marketing CampaignMore
  • May 30th, 2008--Novack and Macey Obtains Emergency Relief to Protect Client’s Patent InterestMore
  • May 1st, 2008--Novack and Macey Secures Trial Victory for Recording ArtistMore
  • April 16th, 2008--Nation’s Largest Power Grid, a Novack and Macey Client, Sues Hedge Funds Over Trading Losses.More
  • April 15th, 2008--Copyright Trial Leads to Favorable SettlementMore
  • April 11th, 2008--Tort Immunity Act Cannot Stop Novack and MaceyMore
  • April 10th, 2008--Article “Recovering Attorney Fees for Litigation Work Performed by In-House Counsel”More
  • February 28th, 2008--Wrightwood Sues McLean Over Atlanta LoanMore
  • January 21st, 2008--Departing Executives and the Wage Payment Act: A primer for employers and departing executives.More
  • December 2nd, 2007--Monte Mann Asked by Chicago Tribune to Comment on Dennis Quaid’s Lawsuit Against BaxterMore
  • November 6th, 2007--Millennium Park Grill Defeats Unlawful TaxMore
  • July 25th, 2007--Overcharge Claim Soundly DefeatedMore
  • June 27th, 2007--Novack and Macey’s Client Dismissed From Mortgage Rescue Fraud CaseMore
  • March 22nd, 2007--Appellate Court Affirms Summary Judgment in Declaratory Judgment ActionMore
  • November 26th, 2006--Novack and Macey LLP Partner Monte Mann Appointed Independent Counsel to Investigate Milberg Weiss’ Role in Action Against BoeingMore
  • October 19th, 2006--Novack and Macey LLP Selected as a “GO-TO Law Firm” by a Fortune 250 CompanyMore
  • October 5th, 2006--Levine, Siegel and Campbell Obtain Over $18.9 Million in an Arbitration Award Against a Fund ManagerMore
  • August 21st, 2006--Novack and Macey LLP Prevails on Motion to Convert Chapter 11 Bankruptcy CaseMore
  • August 4th, 2006--Marinello, Miller and Schwartz publish Smart Evidence: Commercial LitigationMore
  • July 26th, 2006--Novack and Macey Successfully Defends Pledge Claim Brought By Florida State University FoundationMore
  • April 24th, 2006--Victory For Fox News Network vs. Chicago Tribune over ‘Red Eye’ nameMore
  • April 3rd, 2006--Trial Court Rules In Favor Of Warehouse OwnerMore
  • March 30th, 2006--Novack and Macey LLP Prevails at Corporate-Veil-Piercing TrialMore
  • March 28th, 2006--Novack and Macey Beats Back A Challenge To Its Client’s Federal Court ClaimMore
  • February 1st, 2006--9 out of 10 Novack and Macey Partners Named “Leading Lawyers”More
  • January 25th, 2006--Novack & Macey Successfully Defends Dismissal of AppealMore
  • January 6th, 2006--Complete Victory for Defendants in Patent and Trademark Infringement TrialMore
  • November 11th, 2005--In Case of First Impression, Court Upholds Novack and Macey’s Interpretation of Statute Regarding Security InterestsMore
  • November 11th, 2005--Appellate Court Upholds Novack and Macey’s Successful Defense of Law Firm Claim Accused of MalpracticeMore
  • September 26th, 2005--Illinois appellate court upholds summary judgment in favor of Novack and Macey client Dorna USAMore
  • September 12th, 2005--Novack and Macey Defeats $15 Million Claim Against Its Client and Prevails on CounterclaimsMore
  • August 1st, 2005--Novack and Macey’s Client Prevails against Insurance Company Seeking Reimbursement of Defense CostsMore
  • December 14th, 2004--80% of Novack and Macey Partners Named Leading LawyersMore
  • December 13th, 2004--Novack and Macey Wins Summary Judgment for Jet Support Services, Inc.More
  • January 15th, 2003--Indiana Contractor-Partner Liable for Construction DefectsMore

NEWSLETTERS


Volume 1 2009

Protecting the Cost Advantages of Arbitration PDF

Volume 2 2008

Recovering Attorney’s Fees for Litigation Work Performed by In-House Counsel  PDF

Volume 1 2008

Departing Executives and the Wage Payment Act  PDF

Fall 2007

Illinois Settlement Pitfalls  PDF

Spring 2007

The Fiduciary Shield Doctrine: Giving Effect To Limited Liability By Refusing To Exercise Personal Jurisdiction Over Fiduciaries And Other Agents  PDF

Winter 2006

Transactional Malpractice Causation  PDF

The Changing World Of Electronic Discovery

By Steven J. Ciszewski

Without question, developments in wireless and electronic communications technology have made it easier to keep in touch with the office at any time of day and from any place in the world. But this technology also has given rise to many new issues for management, in-house attorneys and outside counsel when a legal dispute occurs. When faced with the threat of litigation, the days of simply going to the filing cabinet to collect the relevant paper documents and files are over. The legal team must now quickly identify, preserve and work with the electronic data stored on office computers, home computers, laptop computers, e-mail servers, other network servers, system back-up files or tapes, PDAs and more.

The purpose of this article is to present a basic overview of the types of electronic data that are frequently sought in litigation and that should be identified and preserved once a risk of litigation arises. We will then discuss some of the consequences (many quite harsh) for the litigant who fails to take immediate steps to identify and preserve this data. Finally, we will provide some basic guidelines for electronic data management that should be considered at all times and certainly implemented when the risk of litigation materializes.

One final note before proceeding to these topics. There are many complications and issues relative to electronic data that cannot possibly be addressed in this one article. Whether taking preventative measures now – or when implementing a data retention plan when the litigation risk ripens – the first step should be to involve the entire legal team, including outside counsel, to quickly establish a protocol for the preservation of data. The exact steps and precautions must be analyzed on a case-by-case basis, and nothing in this article or any of the cases cited herein provides a fail-safe means of electronic data preservation in all cases.

The Broad Scope Of Electronic Discovery

Courts have left no doubt that electronic data is within the scope of discovery allowed in litigation. Thompson v. U.S. Dept. of Housing and Urban Dev., 219 F.R.D. 93, 96 (D. Md. 2003) (collecting cases).

Indeed, by the end of the year, an expansive amendment to the Federal Rules of Civil Procedure is expected to be in place. These proposed new rules make explicit the key role that the discovery of electronic data plays in current lawsuits. Specifically, the proposed rules describe the scope of discovery as including all “documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained . . . .” (Proposed Fed. R. Civ. P. 34(a).) The comments to this proposed rule further clarify “that discovery of electronically stored information stands on equal footing with discovery of paper documents” and that the proposed rule “is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.” (Comments to Proposed Fed. R. Civ. P. 34(a).)

Proposed Rule 34 also sets forth certain guidelines about how the electronic discovery process should work. For example, it permits the requesting party to “specify the form or forms in which electronically stored information is produced.” (Proposed Fed. R. Civ. P. 34(b).) The comments explain that, given current technology, electronic data may be stored in many different manners – (i.e., word processing documents, e-mails, electronic spreadsheets, and image and sound files). Depending on the circumstances, the requesting party may want some types of data produced electronically (i.e., large spreadsheets) and other types of data produced in paper form (i.e., e-mails). The responding party does, however, have the ability to object to a designation by the requesting party and/or make a counter-designation regarding the format of production if the requesting party does not do so. The comments encourage the parties to discuss the format of the production of electronic data at an early stage to allow for the most efficient and cost-effective exchange of information.

Finally, the proposed rule requires that the responding party produce electronic data in its normal format or in a format that is “reasonably usable.” The comments caution that in some circumstances, this may require the producing party to “provide some reasonable amount of technical support, information on application software, or other reasonable assistance to enable the requesting party to use the information.” (Comments to Proposed Fed. R. Civ. P. 34(b).)

Some individual states also have adopted court rules explicitly stating that electronic data falls within the scope of discovery in litigation. In Illinois, for example, Supreme Court Rule 201(b)(1) explicitly includes within the scope of discovery “all retrievable information in computer storage.” Similarly, the California Code of Civil Procedure explicitly includes electronic mail within the scope of discovery. (Cal. Civ. Proc. Code §2016.020, incorporating Cal. Evid. Code §250.)

Sources Of Electronic Data

Given that electronic data is clearly within the scope of discovery, it is important for the legal team to identify the many potential sources that will need to be searched when the threat of litigation arises. Of course, the actual sources of electronic data will vary on a case-by-case basis. However, there are some typical areas that should be searched in all cases – and the search expanded, if necessary, depending on the details of the specific case.

Courts have given the following examples of electronic data that is subject to discovery: voice mail, e-mail, deleted e-mail, data files, program files, back-up files, archival tapes, temporary files, system history files, web site information in textual, graphical or audio format, web site files, cache files and “cookies.” E.g., Thompson, 219 F.R.D. at 96. As noted, the key in any individual case is to quickly consult with the legal and information technology team in order to identify all potential sources of electronic data in your specific case.

One potential location of electronic data – deleted files – is a common source of confusion. When a user deletes an electronic file (for example, by deleting a file from the hard drive), that data is not necessarily immediately erased. Id. at 97. Rather, that data is simply designated as not in use so that the computer knows that it may be overwritten in the future. Id. Thus, courts have held that deleted files which have not been overwritten are within the permissible scope of discovery. Id. See also Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 (S.D.N.Y. 2003). This level of detail should be enough to demonstrate that it is very important to immediately consult with the information technology staff to make sure these more obscure sources of data are identified and preserved.

Duty To Preserve Electronic Data

We know that there is a vast universe of electronic data and that it is discoverable in litigation. The next question is what duty do litigants (and potential litigants) have to preserve their electronic data. The timing and scope of this duty require special attention because many data storage and computer systems automatically purge old files and/or re-write over them. Indeed, the normal daily shut-down operations of a computer may delete potential sources of electronic data.

Probably the most well-known and oft-cited case in the realm of electronic discovery is Zubulake – a gender discrimination and retaliatory discharge case brought by Zubulake against her former employer. In that case, the court issued a series of lengthy written opinions addressing the former employer’s duty to preserve e-mail archives and back-up tapes and the consequences for its failure to do so.

The Zubulake court held that the duty to preserve electronic data “arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). Under this standard, it is clear that the duty arises no later than the date that litigation is filed or a claim asserted. Under the facts in Zubulake, for example, the court found that the duty of preservation necessary arose as soon as Zubulake filed her EEOC claim (in August 2001). Id.

However, Zubulake went further to hold that the duty of preservation may arise even before a formal lawsuit or charge is filed. In that case, there was evidence that Zubulake’s former work colleagues feared that she would sue as early as April 2001 (four months before Zubulake’s EEOC claim was filed). Id. at 216-17. Thus, Zubulake held that the relevant people anticipated litigation in April 2001 and that the duty of preservation, therefore, was triggered at that time. Id. at 217.

Once the duty of preservation is triggered, the next issue is what exactly needs to be preserved. Courts generally reject the idea that all electronic data need be preserved, because to require that would cripple most corporations. Id. Zubulake, for example, held that the duty of preservation extends to all “unique, relevant evidence that might be useful to an adversary.” Id. With respect to this requirement, Zubulake holds that at least one copy of all relevant electronic data must be retained. Id. However, according to Zubulake, the retaining party has the option to keep this data in the format (i.e., electronic file, paper or other format) that is most convenient for it. Id. at 218. Thus, the party in possession of electronic data is well advised to retain at least one copy of all relevant electronic data in the format that is most convenient, least expensive and causes the least long-term impact upon on-going operations.

Zubulake further holds that the duty of preservation extends to all e-mails sent by or to “those employees likely to have relevant information – the ‘key players’ in the case.” Id. This includes all e-mails to or from such “key players” that may bear on the subject matter of the dispute. The duty also includes data from their PDA, laptop computer, and any electronic files that they created or worked on (i.e., their Microsoft Word, Excel and other similar files). Id.

Zubulake summarized the scope of the duty to preserve as follows: “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Id.

Consequences For Failing To Preserve Electronic Data

The consequences for breaching the duty of preservation can be quite severe. Courts have the authority to issue a wide variety of sanctions for discovery abuses, including a party’s failure to satisfy its duty to preserve and produce electronic data. For example, the Federal Rules of Civil Procedure explicitly authorize courts to impose sanctions for discovery abuses and/or non-compliance with court orders including, without limitation: (a) taking certain facts as true; (b) prohibiting the non-compliant from introducing evidence on certain topics; (c) striking pleadings; and (d) entering default judgment. (Fed. R. Civ. P. 37.) Likewise, the Illinois Supreme Court Rules explicitly authorize similar sanctions for certain discovery abuses and/or non-compliance with court orders. (Illinois Supreme Court Rule 219.)

Applying these and similar rules – as well as their own inherent authority to govern the cases before them – courts have taken a variety of approaches to the destruction of electronic data. In this context, the following three potential sanctions are discussed quite often: (a) default judgment/dismissal; (b) an adverse inference; and (c) restricting the use of electronic data as evidence. Although a full discussion of how and when these sanctions may be applied is beyond the scope of this article, the following discussion will describe factors that may govern the severity of the sanction considered for the mishandling of electronic data.

1. Dismissal/Default Judgment

The most severe sanction – dismissal – was recommended in Kucala Enter., Ltd. v. Auto Wax Co., Inc., No. 02 C 1403, 2003 WL 21230605 (N.D. Ill., May 27, 2003); adopted as modified at 2003 WL 22433095 (N.D. Ill., Oct. 27, 2003). In Kucala, the plaintiff installed and ran a program called Evidence Eliminator on his computer. Id. at 1. Evidence Eliminator was advertised to totally scrub the hard drive by permanently deleting all data, including the residual data that is embedded in the drive even after the user deletes those files. Id. at 2. As a sanction for using Evidence Eliminator, the Court recommended the dismissal of the claims related to the evidence destroyed and the award of certain attorneys’ fees. Id. at 8.

The Kucala court reached two important conclusions that seem to be applicable even outside the fact setting in that case. First, the court noted that dismissal is an appropriate sanction where the litigant’s conduct is objectively unreasonable or in bad faith. Thus, an argument that the litigant subjectively did not know he was permanently deleting files or did not know the files were relevant to the litigation may not insulate that litigant against the sanction of dismissal. It is an objective – not subjective – analysis.

Second, the court did not require there to be a showing of what files were actually deleted and/or that those files contained relevant information. It was enough that a large volume of files was deleted under those extreme circumstances. Id. at 6.

A case like Kucala demonstrates that the use of scrubbing software after the preservation duty has arisen will be viewed the same way as a litigant using a paper shredder to destroy hard copy documents. It is subject to the most severe of sanctions and should not be attempted.

2. Adverse Inference

A less severe, but still crippling sanction for the destruction of electronic data is an adverse inference or jury instruction. Under this sanction, the court may instruct the jury that, if it finds a party had electronic data within its control and that this data was destroyed, then the jury can infer from those facts that the electronic data was damaging to that party’s case. E.g., Mosaid Tech. Inc. v. Samsung Elec. Co., Ltd., 348 F. Supp. 2d 332, 334 (D.N.J. 2004).

The predominant purpose of an adverse inference is to “level the playing field after a party has destroyed or withheld relevant evidence.” Id. at 338. Regardless of its purpose, the introduction of such an instruction at trial could very well be the deciding factor for the jury, regardless of all other facts. Accordingly, while identified as a lesser sanction, it still may have an outcome-determinative effect. Because this is a frequently considered sanction, we provide three detailed case studies which provide examples of how and when this sanction might be applied.

A. Case Study: Zubulake

In Zubulake, certain e-mail back-up tapes were missing and/or were destroyed. Zubulake, 220 F.R.D. at 219-20. Zubulake, therefore, asked for an instruction to the jury that it was allowed to infer that the evidence on those lost or destroyed tapes would have been favorable to her and harmful to her former employer. Id. at 219.

Zubulake held that three elements must be satisfied for the imposition of an adverse inference. The party seeking the adverse inference must show: “(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a ‘culpable state of mind’; and (3) that the destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support the claim or defense.” Id. at 220. However, if the destruction was done willfully, then the party seeking an adverse instruction need not prove that the evidence was “relevant.” Id.

Notably, Zubulake concluded that the requisite “culpable state of mind” could include mere negligence. Id. The court further concluded that “[o]nce the duty to preserve attaches, any destruction of documents is, at a minimum, negligent.” Id. Thus, in effect, the first two requirements are really collapsed into one analysis – did the party have a duty to preserve the information. If it did and the information was destroyed, the first two requirements for an adverse instruction are satisfied.

Initially, Zubulake could prove only that the destruction of the e-mails was negligent and could not prove that “relevant” evidence was destroyed. Accordingly, at first, the court found that she was not entitled to an adverse inference. Id. at 222.

Later, however, new evidence came to light which established that despite counsel’s instructions to initiate a “litigation hold” on all relevant e-mails, certain e-mails had been deleted by several key players in the dispute. Some of these e-mails were retrieved and produced very late in the litigation, but others were irretrievably lost. See Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 426-429 (S.D.N.Y. 2004).

In light of these new facts, the Zubulake court re-considered its ruling relative to the adverse inference. Most important, the court held that merely issuing a “litigation hold” is not sufficient to satisfy the duty of preservation. Id. at 432. Rather, the party and counsel must affirmatively monitor the efforts to ensure compliance with the hold and the retention of all relevant electronic data. Id. The court noted that to properly monitor compliance, counsel, in-house legal staff and the information technology staff should consult each other to make sure all sources of electronic data are identified and preserved. Id. In addition, the key players in the case should be consulted so that they have a clear understanding of the types of data that they should preserve and forward to counsel. Id.

Given the newly discovered lost evidence and the extreme delay in production of other evidence, the Zubulake court now found that the former employer’s conduct was willful. Id. at 436. This finding, by definition, resulted in the presumption that the lost evidence was “relevant.” Id. at 436. As a result, the court found that Zubulake had now satisfied the three requirements for an adverse inference instruction. Id. at 436-37. Zubulake was also granted permission to re-depose any witnesses she wanted at her former employer’s expense. Id. at 437.

Finally, the Zubulake court suggested a list of things counsel and legal staff should do to ensure compliance with discovery obligations and avoid such a sanction. First, they should issue a litigation hold as soon as litigation is anticipated and then re-issue that instruction on a periodic basis. Id. at 433. Second, legal staff should communicate with the key players to ensure compliance and make sure their means of preservation are sufficient. Key players should likewise be periodically reminded of the litigation hold. Id. at 433-34. Third, legal staff should instruct all employees to produce electronic copies of their active files and make sure that all back-up media is identified and stored for safe-keeping. Id. at 434.

B. Case Study: Mosaid

In Mosaid, the defendant continued with its normal e-mail retention policy, which called for the destruction of historical e-mails on a rolling basis. The defendant kept this retention policy in place, and continued to destroy e-mails on a rolling basis, even after the litigation was filed. As a result, almost no relevant e-mails were retained or produced. Mosaid, 348 F. Supp. 2d at 333.

The Mosaid court required a four-part showing to adopt an adverse inference: (a) the e-mails were within the party’s control; (b) there was actual suppression or withholding of the evidence; (c) the evidence suppressed or withheld was relevant to claims or defenses; and (d) it was reasonably foreseeable that the evidence would be discoverable. Id. at 336. The defendant in Mosaid argued that the “actual suppression” showing requires that the destruction be intentional. Id. at 337. According to that defendant, its destruction of the e-mails was not intentional, but was rather pursuant to its normal e-mail retention policy. The court quickly rejected this argument, explaining that “[w]hen the duty to preserve is triggered, it cannot be a defense to a spoilation claim that the party inadvertently failed to place a ‘litigation hold’ or ‘off switch’ on its document retention policy to stop the destruction of that evidence.” Id. at 339. Thus, an adverse inference was adopted.

C. Case Study: Residential Funding

In Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002), the plaintiff delayed in producing its e-mail files and eventually tendered e-mail archive tapes to the defendant within days of the trial. Id. at 105. The plaintiff explained that the delay was caused by its own internal technology deficiencies and the fact that even an outside third-party vendor could not recover data from the archive tapes in a timely manner.

The defendants moved before the district court for the imposition of an adverse inference because of the discovery delays. The motion was denied, in large part because the district court concluded that the plaintiff had not acted with bad faith or gross negligence. Id. at 108. On appeal, the district court’s order denying sanctions was vacated and the case remanded with permission for the defendant to file a new motion for sanctions under the guidelines set forth by the appellate court. Id. at 112 -13.

Three aspects of this case are important to consider. First, the Second Circuit clearly held that sanctions may be awarded for the mere delay in production of electronic data. The actual destruction of this data is not required for the award of sanctions. Id. at 110. Second, the appellate court rejected the idea that a showing of bad faith or gross negligence was required to award sanctions. Rather, “[t]he sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence.” Id. at 108. Third, the plaintiff argued that it did not have the necessary culpability in connection with the delay because it hired a third-party vendor to help retrieve the data and even the third-party vendor could not do so in a timely fashion. Even this argument was rejected, in part, because a different third-party vendor subsequently hired by the defendant was able to retrieve thousands of e-mails within days of obtaining the back-up tapes. Id. at 104, 111.

From these cases, it is abundantly clear that litigants must be very aggressive in preserving their electronic data. Merely issuing a litigation hold is not enough. The hold needs to be closely monitored to ensure compliance. And the legal staff must make sure to involve the information technology staff at a very early stage to make sure all of the potential sources of electronic data are quickly identified and isolated for preservation.

3. Restricted Use Of Evidence

A third possible sanction for the failure to preserve or produce electronic data is to restrict the use of that data. In Thompson, the defendant failed to preserve certain e-mails and also produced 80,000 e-mail records after the close of discovery and after a prior deadline set by the court. Thompson, 219 F.R.D. at 96. As a sanction for the late production, the court severely restricted the defendant’s use of these e-mails. The defendants were prohibited from using (or introducing into evidence) at trial any of the 80,000 e-mail records. Moreover, the e-mails could not be used in the preparation of defense witnesses and/or by the defense to refresh the recollection of any defense witnesses. Conversely, the plaintiff was allowed to use the e-mail records in any way it deemed fit – including in the cross-examination of defense witnesses. Id. at 104-05.

The Thompson court used a five-part test to determine the appropriate sanction: (a) the surprise to the party against whom the evidence would be offered; (b) the ability of that party to cure the surprise; (c) the extent to which allowing the evidence would disrupt the trial; (d) the importance of the discovery; and (e) the explanation of the non-disclosing party for its failure to provide the discovery. Id. at 103. This five-part test appears to be geared mostly to a situation where electronic data is produced very late in the litigation – likely after discovery and after depositions. It appears from the Thompson analysis that the key considerations are the prejudice caused by the late disclosure and the presence of a legitimate reason for the delayed disclosure. In all events, it is important to note that a mere delay in finding electronic data may very well result in the same type of sanction imposed when data is lost or destroyed.

Who Pays For All Of This?

Given the broad scope of discovery permitted relative to electronic data, one frequent question is not whether it must be preserved and produced in litigation – but who should pay for its retrieval and production. A complete analysis of this topic is beyond the scope of this article. However, we can summarize a few general rules. Most courts follow a presumption that the party in possession of the information must pay for its retrieval and production. E.g., Zubulake, 217 F.R.D. at 317. However, courts will consider shifting the cost of retrieval and production to the party requesting the data if that request imposes an “undue burden.” Id. at 318. This term is quite vague, but generally is determined based upon a balancing of the cost of retrieving and producing the information versus the likely benefit of that information given the specifics of the case. Id. See also Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004) (eight-factor test).

Conclusion

As we have noted throughout this article, the actual duties relative to electronic data will be decided in large part based upon the specific facts of a case. However, from the general discussion above and the case law summarized above, there are three key points to keep in mind at all times.

First, as soon as a legal dispute becomes apparent, legal and information technology personnel should meet to determine the universe of potential sources of electronic data that is possibly relevant to the dispute.

Second, legal and information technology staff should immediately meet with the “key players” in the potential dispute to determine if there are any off-line or unique storage methods used by those key players. For example, if the key players frequently use their home computer for work or store data on mobile communication devices, those sources should be identified.

Third, all of the potential sources of electronic data identified in steps one and two should be frozen by a litigation hold. Regardless of retention/destruction policies, all data in those sources as of the date a dispute is apparent should be preserved. And all future communications in any way relevant to the dispute should also be isolated and preserved. This “litigation freeze” must also be aggressively monitored to ensure full compliance.

Once these three steps are taken, it then becomes a very fact specific process to determine the best way to store the information with minimal disruption to other day-to-day activities; the best way to make this data available to your own counsel; and the best way to make this data available to opposing counsel, etc.

In closing, the changing technology and discovery rules ensure that the issue of electronic data discovery will be a crucial issue subject to dispute and change in the coming years. It is important for all attorneys to be familiar with the potential sources of electronic data to ensure that the process of gathering and producing this information is complete. It is also important for in-house legal staff to be on the same page as the information technology staff to ensure that they can respond in a coordinated and effective way when the threat of litigation arises.

PDF

Fall 2006

Link

Fall 2005

It’s Official – Novack and Macey Partners Are Super Lawyers!  PDF

Summer 2005

Can A Stranger To A Contract Acquire Any Rights Under It? A Primer On Third Party Beneficiary Law.  PDF

Novack and Macey LLP 100 North Riverside Plaza, Chicago, IL 60606-1501 Phone: (312) 419-6900 Fax: (312) 419-6928 Email Us
© 2014 All Rights Reserved.    Disclaimer      Email Login ]
Home     Our Firm     People     Litigation Focus     News