How To Get A Court Order In Louisiana

LSBA "Uncorked: A CLE Adventure in California 's Wine Country" ESI: Electronically Stored Information - Securing, Safeguarding, Submitting and Screwups (Spoliation) March 24, 2014 Sonoma, California Brooke Barnett Bernal The Long Law Firm Baton Rouge, LA Michael A. Patterson The Long Law Firm Baton Rouge, LA Edward J. Walters, Jr. Walters, Papillion, Thomas, Cullens Baton Rouge, LA

S. Brooke Barnett Ms. Barnett is a partner with the Long Law Firm and joined the firm in 2007. Her practice areas primarily include construction litigation, business litigation, professional liability, professional malpractice defense of accountants, architects and engineers and business transactions. Ms. Barnett-Bernal was born in Richmond, Virginia. Ms. Barnett-Bernal has also lived in Tulsa, Oklahoma and Natchitoches, Louisiana, where she attended high school. She moved to Baton Rouge to attend Louisiana State University, where she graduated summa cum laude with a Bachelor of Arts degree in 2003 and a Bachelor of Science degree in 2004. Ms. Barnett-Bernal double majored in Spanish and International Trade and Finance. Ms. Barnett-Bernal graduated in May 2007 from Louisiana State University s Paul M. Hebert Law Center, earning a Juris Doctorate degree and a Bachelor of Civil Law degree. Ms. Barnett is fluent in Spanish.

MICHAEL A. PATTERSON is a graduate of the LSU Law Center and is the senior litigation partner with Long Law Firm in Baton Rouge, Louisiana. He received the Certificate and LLM in Dispute Resolution from Pepperdine University. He is the managing member of The Patterson Resolution Group which provides mediation and arbitration services throughout the State of Louisiana in complex legal matters. He serves on the adjunct faculty of the LSU Law Center and, along with Ed Walters, teaches a course in trial advocacy and evidence. He is the author of many legal articles and is the chapter author of Louisiana Trial Procedure, Hearsay. He is a past president of the Louisiana State Bar Association and the Baton Rouge Bar Association. He is past Chairman of the Louisiana Supreme Court Committee on Bar Admissions. He received the LSU Law Center Distinguished Achievement Award in 2013.

Edward J. Walters, Jr., a partner in the Baton Rouge law firm of Walters, Papillion, Thomas, Cullens, received his B.S. from LSU in 1969 and his J.D. from the LSU Law Center in 1975. He has practiced in the Baton Rouge area for over 38 years representing plaintiffs in personal injury cases. He is Board Certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Trial Advocates and is a Fellow of the American College of Trial Lawyers and the International Academy of Trial Lawyers. He is an Adjunct professor of law at the LSU Law Center where he and Mike Patterson jointly teach a trial skills course entitled "Advanced Trial and Evidence Seminar." He is a frequent lecturer and writer on litigation, evidence, ethics and professionalism topics and has been the editor of the Baton Rouge Bar Association's monthly magazine Around the Bar for over 28 years.

TABLE OF CONTENTS PART I LEGAL FRAMEWORK 1 Duty to Preserve Evidence 4 What to Do When Notice is Received 5 Document Retention Policy 8 PART II SUBMITTING: GETTING IT IN AND KEEPING IT OUT 9 Back to Basics 9 Relevance and Unfair Prejudice 10 Authentication 11 Rule 902 14 The Easy Way 14 Judicial Notice? 15 Isn't It Hearsay 15 Business Records 16 Original Writings Rule 17 Email 18 Authenticating Email 19 Web Pages 21 Two Cases Going Different Directions 21 Facebook Postings 24 My Space Postings 25 Back to Basics Again 26 PART III SCREWUPS (SPOILATION) 27 Introduction 27 Federal Law 27

The Courts Inherent Authority 28 Factors For Spoliation Sanctions 29 Level of Mental Culpability 31 Rule 37 of the Federal Rules of Civil Procedure 36 State Law 38 CONCLUSION 40 ATTACHMENT: A-Litigation Hold Policy B-Document Retention Policy

1. LEGAL FRAMEWORK. State Law. In Louisiana, a party may serve on another party requests to produce "designated documents or electronically stored information." La. Code of Civ. Proc. art 1461 "A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On a motion to compel discovery or for a protective order, the party from whom discovery is sought shall show that the information is not reasonably accessible because of undue burden or cost. If the showing is made the court may nonetheless order discovery from such sources if the requesting party shows good cause." La. Code Civ. Proc. art. 1462(B)(2) "If the request does not specify the form or forms for producing information, including electronically stored information, a responding party shall produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. When electronically stored information is produced, the responding party shall identify the specific means for electronically accessing the information." La. Code Civ. Proc. art. 1462(C). Federal Law. Fed. R. Civ. P. 34 allows a party to request the production of any designated documents or electronically stored information. Fed. R. Civ. P. 34(a)(l)(A). A response may state an objection to the requested form for producing electronically stored information. If there is an objection to the requested form the party responding must state the form or forms it intends to use. Fed. R. Civ. P. 34(b)(2)(D) Documents including electronically stored information which are produced "must be produced as they are kept in the usual course of business or must be organized and labeled to correspond to the categories in the request." Fed R. Civ. P. 34(b)(2)(E)(i). "If a request does not 1

specify a form for producing electronically stored information a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms... A party need not produce the same electronically stored information in more than one form." Fed. R. Civ. P. 34(b)(2)(E)(ii-iii). Fed. R. Civ. P. 34 allows a requesting party to enter upon the property of the responding party to "...inspect, measure, survey, photograph, test or sample the property or any designated object or operation on it." Fed. R. Civ. P. 34(a)(2) In Louisiana, La. Code Civ. Proc. arts. 1461 and 1462(E) provides that the responding party must be given the opportunity to produce the requested ESI from its computer. Fed. R. Civ. P. 26(b)(2)(B) specifically provides that a responding party does not need to produce ESI from sources that the "party identifies as not reasonably accessible because of undue burden or cost." Comment A to the 2007 amendment to La. CCP art. 1461 state in part, "This authorization does not require a responding party to produce electronically stored information from sources that are shown not to be reasonably accessible because of undue burden or cost. When the responding party presents a valid objection to production on this basis the court may consider production under more convenient and less burdensome conditions and with an allocation of the cost of production between the parties." In La. Workers' Comp. Corp. v. Quality Exterior Serv., LLC, 11-1197 (La. App. 1st Cir. 5/2/12) 925 So.3d 1034, the Court had before it the issue of when the requesting party sought ESI relating to a specific insurance policy year to be produced in native format, LWCC objected to the production in the native format alleging that such production would be unduly burdensome. LWCC's objection was based upon its assertion that the steps necessary to provide the information in the form requested would require a review of the earliest backup data which was effective January 2005 which was located on a 2005 year end back up tape. It further 2

contended that it no longer possessed the necessary software and hardware to access the information contained on the 2005 year end back up tape. The Court of Appeal, in reversing the ruling of the trial court, ordered LWCC to produce the requested information finding the explanation for failure to produce not persuasive. A series of related opinions from the federal court in the Southern District of New York answered many of the questions on production of ESL In the first of these cases, Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309(S.D.N.Y. 2003), a discovery dispute arose in a gender discrimination case when the plaintiff sought "[a]ll documents concerning any communication by or between UBS employees concerning plaintiff." Id. at 312 (quoting Plaintiff s First Request for Production of Documents). The term document included electronic or computerized data compilations. Apparently the employer had never searched responsive emails on any of its back-up tapes. The employer stated that the cost of producing emails on backups would be prohibitive. The Court stated Fed. R. Civ. P. 26(b)(2) imposes a "proportionality test" on the scope of discovery. The court observed that the presumption under the federal rule is that the responding party must bear the expense of complying with the request, but that a party may request the court to issue a protective order, protecting it from undue burden or expense. The court noted the solution to this dilemma of cost associated with retrieving information is to consider "cost shifting," that is to force the requesting party rather than the answering party to bear the cost of discovery. The court cites to the case of Rowe Entm 't v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y 2002), favorably commenting on the eight (8) factors to be used to determine whether discovery costs should be shifted. The eight (8) factors cited are: 1. The specificity of the discovery request; 2. The likelihood of discovery of critical information; 3

3. The availability of such information from other sources; 4. The purposes for which the responding party maintains the requested data; 5. The relative benefits to the parties of obtaining the information; 6. The total cost associated with production; 7. The relative ability of each party to control costs and its incentive to do so; 8. The resources available to each party. The court noted that "cost shifting"... should be considered only when electronic discovery imposes an undue- burden or expense on the responding party." The court proceeded to modify the Rowe test, finding it to be incomplete. The court developed a new seven (7) test factor based on the modification to Rowe. The seven (7) factors adopted were: 1. The extent to which the request is specifically tailored to discover relevant information; 2. The availability of such information from other sources; 3. The total cost of production compared to the amount in controversy; 4. The total cost of production compared to the resources available to each party; 5. The relative ability of each party to control costs and its incentive to do so; 6. The importance of the issues at stake in the litigation; 7. The relative benefits to the party of obtaining information. The next case in the series Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280( 2003), the court applied its modified Rowe formula and determined that the shifting of one-fourth of the estimated $166,000 necessary to restore and search the back up tapes was appropriate. 2. THE DUTY TO PRESERVE EVIDENCE "The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation. If a party cannot fulfill this duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence." 1 1 1 Silvestri v. Gen. Motors Corp., 271 F.3d 583,591(4 1 Cir. 2001) (citing Kronish v. U.S., 150F.3d 112, 126 (2 d Cir. 1998)). h 4

Silvestri was involved in a car accident where an air bag did not deploy during the accident. Silvestri and his attorney failed to preserve the vehicle which was subsequently repaired and sold by the owner's insurer. The court found that the failure to preserve warranted that the manufacturer, General Motors which was prejudiced to the point where the only appropriate sanction was dismissal of the claim. Two questions must be asked when considering the duty to preserve. When does the duty begin and what evidence must be preserved? The American Bar Association's Civil Discovery Standard, Standard No. 10, "Preservation of Documents" states in part, "When a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced the lawyer should inform the client of its duty to preserve potential and relevant documents and of the possible consequences for failure to do so." The question is really no longer whether there is a duty to preserve electronically stored information, the real question is what is the scope of this duty? In Zubulake, the court stated, "[O]nce 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. As a general rule, that litigation hold does not apply to inaccessible back-up tapes, (e.g. those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if back-up tapes are accessible (i.e. actively used for information retrieval), then such tapes would likely be subject to the litigation hold." 220 F.R.D. 212,219 The American Law Institute's Restatement of the Law Governing Lawyers, 118, "Falsifying or Destroying Evidence" states, "[a] lawyer may not destroy or obstruct another 5

party's access to documentary or other evidence when doing so would violate a court order or other legal requirements, or counsel or assist a client to do so." 2 The Restatement goes on to add "[i]t is presumptively lawful to act pursuant to an established document retention destruction program that conforms to existing law and is consistently followed, absent a supervening obligation such as a subpoena or other lawful demand for or order relating to the material." Id.at comment c. "Counsel and client must act to preserve evidence as soon as they are on notice of its relevance to current or future litigation." Michael C. Miller & Jeffrey M. Theodore, Keeping The Nightmares At Bay, 40 Litigation 14, (2013). 3. WHAT TO DO WHEN NOTICE IS RECEIVED? A party has to preserve evidence when it has "notice that the evidence is relevant to the litigation or when a party should have known that the evidence may be relevant to future litigation" 3 The events which can constitute a trigger to institute the obligation of preservation and a legal hold may start with a discussion with key employees to hold on to specific files and data until it is determine that further action is necessary. Be alert to what documents may be in line for routine document destruction. The Sedona Conference produced a commentary on legal holds which included four (4) guidelines which are produced below: Guideline 1 A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation. Guideline 2 Adopting and consistently following a policy or practice governing an organization's preservation obligation is one factor that may demonstrate reasonableness and good faith. 2 American Law Institute, RESTATEMENT (THIRD) OF THE LAW: THE LAW GOVERNING LAWYERS 118(2)(2000). 3 Eckhardt v. Bank of America, N.A., No. 3:06CV512-H, 2008, WL 1995310, at *S(W.D.N.C. May 6, 2008) 6

Guideline 3 Adopting a process for reporting information relating to a probable threat of litigation to a responsible decision maker may assist in demonstrating reasonableness and good faith. Guideline 4 Determining whether litigation is or should be reasonably anticipated should be based on a good faith and reasonable evaluation of relevant facts and circumstances. Sedona identifies a series of factors pertinent to the issue of whether litigation should be reasonably anticipated. They include: The nature and specificity of the complaint or threat; The party making the claim; The position of the party making the claim; The business relationship between the accused and the accusing party; Whether the threat is direct, implied or inferred; Whether the party making the claim is known to be aggressive or litigious; Whether a party who could assert a claim is aware of the claim; The strength, scope and value of a potential claim; The likelihood that data relating to a claim will be lost or destroyed; The significance of the data to the known or reasonably anticipated issues; Whether the company has learned of similar claims; The experience of the industry; Whether the relevant records are being retained for some other reason; and Press and/or industry coverage of the issue directly pertaining to the client, or of complaints brought against someone similarly situated in the industry. Sedona Conference Commentary on Legal Holds: The Trigger & The Process, 201O(Excerpts) Once the decision is made that a preservation obligation exists the next question is what to preserve and how to preserve it. Here is a checklist for a legal hold policy: 1. Notification should be issued in written form; 2. Issue the notification in a timely manner; 3. Identify and focus on key players; 4. Obtain affirmative custodial responses and continue to monitor compliance; 5. Include clear direct instructions for compliance to custodians; 6. Periodically reissue hold so that the obligation is fresh in employee's minds; 7. Counsel must supervise the employees preservation efforts and compliance; 8. Suspending automatic deletion and preserving back up media should be undertaken when warranted as part of the overall mix of preservation steps. Legal Hold and Data Preservation Best Practices, Implementing and Managing the Legal Hold, December 2012. 7

Monitor progress and establish a process which is re-evaluated as the dispute evolves. Determine when the dispute is over. Once the dispute is terminated, normal destruction procedures can be re-implemented. The hold needs to allow clients and employees to clearly determine what documents they need to preserve. The lawyer's job is not simply to issue a litigation hold, but to take affirmative steps to monitor and ensure compliance. It is recommended that counsel speak with key employees that are most likely to have relevant information. If necessary, it is a good practice to obtain signed acknowledgements from key employees of their obligation to preserve documents. (See attached Sample) 4. DOCUMENT RETENTION POLICY Document retention policies have been around forever but its been noted in recent studies "3...that 93% of all documents" originate in an electronic format. Andrew R. Lee, "Keep or Toss? Document Retention Policies in the Digital Era, 55 La. Bar Journal 240 (2007). The fact that many electronically stored and created documents never make it to hard copies presents businesses with serious questions of how long should you retain and store the material. Should you store it indefinitely with its' attendant costs or destroy and risk a claim of spoliation. "A records management program establishes a system whereby the company deliberately designates the records that it will maintain, the period of time for maintenance of such records, and the procedure for their destruction. The goals of such a program are to retain only those documents that are necessary to comply with the law and that benefit the company (and for only that long) and to maintain securely the materials that must be kept for legitimate reasons." Id at 242. In accordance with that, an effective program should accomplish the following: 1. Identify those documents that must be maintained in accordance with the law; 2. Identify those documents that the business must keep to effectively function; 8

3. Track the company's maintenance efforts; 4. Create a schedule for the systematic destruction of records in accordance with the above guidelines; 5. Effectively destroy the documents that are scheduled for elimination under the program; 6. Monitor and audit the company's execution of the program. See attached Sample Document Retention Policy. Submitting: Getting It In and Keeping It Out As we are all aware, the rules of evidence were written for a time when we only dealt with paper documents and tangible things. Those days are long-gone, but, since the rules have not changed, how do we get our electronically stored information (ESI) into evidence? How do we keep theirs out? Back to Basics When it comes to determining what foundation is necessary to admit electronic evidence, we should first go back to basics: Is it relevant? Is it what it purports to be? Is it hearsay? Is there an exception? Does it violate the original writings rule? Does its prejudicial effect outweigh its probative value? Questions concerning ESI' s relevancy and unfair prejudice are much the same as in other types of evidence, but issues concerning authenticity, the original writings rule and hearsay are the most problematic. Much of our discussion will be based on the Federal Rules of Evidence, which, as we all know, are extremely similar to the Louisiana Code of Evidence. Where meaningful differences arise between the Federal Rules and the Louisiana Code of Evidence, those differences will be pointed out. 9

The Federal Rules of Civil Procedure were amended in 2006 to accommodate the discovery of electronically stored information (ESI). The rule amendments reflected the reality that the evidence in virtually every piece of civil litigation now involves some information stored in electronic form. In response to the new discovery rules, practitioners learned how to use the new discovery rules. What was largely neglected, however, was an equally important question: once you've gone to the trouble and expense of obtaining that extremely damaging email, web page, Facebook posting, Myspace posting, instant message, text message, or blog post, how do you get it into evidence at trial or in response to a summary judgment motion? There are five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence: Relevance (Fed. R. Evid. 401) Authenticity (Fed. R. Evid. 901 and 902) Hearsay (Fed. R. Evid. 801, 803, 804, 807) Original Writing, a.k.a. Best Evidence Rule (Fed. R. Evid. 1001-1008) Unfair Prejudice (Fed. R. Evid. 403) Relevance and Unfair Prejudice Let's start with the easy ones. A determination of relevance or unfair prejudice of ESI is no different than that determination when analyzing other types of evidence. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed. R. Evid 401 10

The court may also exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid 403 Authentication In order to properly authenticate a document the lawyer must provide evidence sufficient to support a finding that the information in question is in fact what its proponent claims it to be. Fed. R. Evid 901 Seems simple enough, doesn't it? Just prove it is what you say it is. While there is a paucity of Louisiana jurisprudence on this issue, and not much more elsewhere, there is one leading repeatedly-cited 100 page exegesis from Maryland. In Lorraine v. Markel Ins. Co, 241 F. R. D. 534 (D. Md. 2007) the court was faced with divining what steps are necessary to introduce copies of email correspondence. The beginning paragraph of the judge's discussion of the admissibility of ESI sets the framework: Be careful what you ask for, the saying goes, because you might actually get it. For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information ("ESI"). The adoption of a series of amendments to the Federal Rules of Civil Procedure relating to the discovery of ESI in December of 2006 has only heightened, not lessened, this discussion. Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes "such facts as would be admissible in evidence" for use in summary judgment practice. FED. R.CIV.P. 56(e). This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary "flavors," including e-mail, website ESI, internet postings, digital photographs, and computergenerated documents and data files. 1 1

The big issue with ESI is usually its authenticity. Fed.R Evid. 901(a) defines authenticity: "the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Thus, a party seeking to admit an exhibit need only make a prima fade showing that it is what he or she claims it to be. The Manual for Complex Litigation highlights some of the unique concerns about the accuracy and authenticity of ESI: Accuracy may be impaired by incomplete data entry, mistakes in output instructions, programming errors, damage and contamination of storage media, power outages, and equipment malfunctions. The integrity of data may also be compromised in the course of discovery by improper search and retrieval techniques, data conversion, or mishandling. The proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy. The judge should therefore consider the accuracy and reliability of computerized evidence, including any necessary discovery during pretrial proceedings, so that challenges to the evidence are not made for the first time at trial. Manual for Complex Litigation 11.446 (4th ed. 2000) The extent of the showing necessary to authenticate a piece of electronic evidence will depend on the nature of the evidence and its evidentiary purpose. It appears that the courts are not calling out for "new" rules to handle ESI, but are using the existing rules but with more scrutiny when dealing with ESL In In Re Vee Vinhnee, 336 B.R. 437 (B. A. P. 9th Cir. 2005) the court addressed the authentication of ESI and stated, "Authenticating a paperless electronic record, in principle, poses the same issue as for a paper record, the only difference being the format in which the record is maintained.... The paperless electronic record involves a difference in the format of 1 2

the record that presents more complicated variations on the authentication problem than for paper records. Ultimately, however, it all boils down to the same question of assurance that the record is what it purports to be." Rule 901(a) addresses the requirement to authenticate ESI, but Rule 902(b) attempts to set forth a non-exclusive list of examples of HOW to fulfill that requirement. The pertinent subparagraphs follow: (1) Testimony of witness with knowledge. A witness could testify that he recognizes a copy of an email that he drafted or received. An authenticating witness need not have personal knowledge of the particular exhibit if he can attest to "the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change." Lorraine, 241 F.R.D. at 545 (3) Comparison by trier of fact or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. If one e-mail has been properly authenticated, a second e-mail could be authenticated through comparison with the first. See U S. v. Sa/avian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006). (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. Using circumstantial evidence, for example, the presence of a party's name and email address could establish the authenticity of an e-mail. Some documents contain "metadata," such as a file's name, location, format, size, creator, time and date created, and modification history which could be a "signature" identifying the document and its creator. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. Custody may be established by a certificate of authenticity from the public office or through the testimony of the custodian or other witness with knowledge that the evidence is from a public office authorized by law to keep such records. Lorraine, 241 F.RD. at 548. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. A witness may explain the operation of the computer system or process as well the protocols for maintenance and testing to ensure reliability. Rule 902 1 3

In addition to the non-exclusive methods of authentication identified in Rule 901(b), Rule 902 identifies twelve methods by which documents, including electronic ones, may be authenticated without extrinsic evidence. 902 states that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following (only pertinent subheadings are included): (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority. (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control. (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C). Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record -and must make the record and certification available for inspection -so that the party has a fair opportunity to challenge them. The Easy Way The Federal Rules of Civil Procedure provide three ways to authenticate electronic evidence before trial. A party may use requests for admission to authenticate ESI in the discovery process. Fed. R. Civ. P. 36 (a)(l )(B). At a pre-trial conference, a party may propose stipulations about the authenticity of ESL Fed. R. Civ. P. 16(c)(2)(C). Finally, once a party makes its pre-trial disclosures under Fed. R. Civ. P. 26(a)(3) identifying each exhibit, the opposing party has fourteen days to serve and file objections to the admissibility of any exhibit. Most evidentiary objections not timely made are waived. These methods provide an opportunity to foreclose all of these authenticity objections, but this approach requires some anticipation and advanced planning. Judicial Notice? 1 4

A party may seek judicial notice of foundational facts needs to authenticate an electronic document. Fed. R. Evid. 201(b). Judicial notice could be a helpful way to establish certain well-known characteristics of computers, how the internet works, scientific principles underlying calculations performed within computer programs, and many similar facts that could facilitate authenticating electronic evidence. Lorraine, 241 F.R.D. at 553. Isn't It Hearsay? documents. Needless to say, hearsay issues abound when dealing with a large volume of electronic To properly analyze hearsay issues there are five issues: (1) Does the evidence constitute a statement? A statement is defined as an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion. (Fed. R. Evid. 801(a)) (2) Was the statement made by a "declarant?" (Fed. R. Evid. 801(b)) (3) Is the statement being offered to prove the truth of its contents? (Fed. R. Evid. 801(c)) (4) Is the statement excluded from the definition of hearsay by rule 801(1)? (Fed. R. Evid. 801 (d)); and (5) Ifthe statement is hearsay, is it covered by one of the exceptions identified at Rules 803, 804 or 807? (Fed. R. Evid. 803, 804 or 807) If the ESI you seek to admit contains hearsay, that does not end your analysis. You should consider the twenty-three exceptions in Rule 803, which apply whether or not the declarant is available, and the five in Rule 804, which require the declarant's unavailability. Some of the more pertinent exceptions are discussed below. Business Records 1 5

One often-used exception is the business records exception, which poses several unique problems for ESI proponents and opponents. The fundamental elements are, of course, the same. A record is admissible under this exception if the following foundation is laid through the witness: 1. That he or she is the custodian or other qualified witness able to identify the records. 2. That the record was made by a person with knowledge of the facts or from information transmitted by someone with knowledge of the facts. 3. That the record was made at or near the time of the acts, events, conditions, opinions, or diagnosis appearing on it. 4. That the record was made as a regular practice of that business. 5. That the record was kept in the course of the regularly conducted business activity. One court found that in order to be admitted, computer records required an eleven-step foundation by the movant: 1. The business uses a computer. 2. The computer is reliable. 3. The business has developed a procedure for inserting data into the computer. 4. The procedure has built-in safeguards to ensure accuracy and identify errors. 5. The business keeps the computer in a good state ofrepair. 6. The witness had the computer read out certain data. 7. The witness used the proper procedures to obtain the readout. 8. The computer was in working order at the time the witness obtained the readout. 9. The witness recognizes the exhibit as the readout. 10. The witness explains how he or she recognizes the readout. 11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact. 1 6

In re: Vargas, 396 B. R. 511 (Bankr. C. D. Cal. 2008) Of the over two dozen hearsay exceptions, several have particular relevance to electronic evidence. Exceptions for "present sense impression" and "excited utterance" may be useful for instant or text messages. See Fed. R. Evid. 803(1) & 803(2). As the Lorraine court noted: The prevalence of electronic communication devices, and the fact that many are portable and small, means that people always seem to have their laptops, PDA's, and cell phones with them, and available for use to send e-mails or text messages describing events as they are happening. Similarly, the exception for "existing state of mind" may be particularly useful for e-mail, "a medium of communication that seems particularly prone to candid, perhaps too candid, statements of the declarant's state of mind, feelings, emotions, and motives." Lorraine, 241 F.R D. at 570; Fed. R Evid. 803(3). Original Writings Rule - Fed. R Evid. 1001-1008 The Original Writings Rule, or the Best Evidence Rule, applies when an original or duplicate is being used to prove the contents of a writing. Fed. R. Evid. 1002. The rules have basically eliminated any distinction between originals and duplicates, and particularly for electronic records: "If data are stored in a computer or similar device, any printout or output readable by sight, shown to reflect the data accurately, is an 'original'." Fed. R. Evid. 1001(3). Secondary sources may be used to prove the content of writings if the originals have been lost or destroyed. Fed. R. Evid. 1004, "given the myriad ways that electronic records may be deleted, lost as a result of system malfunctions, purged as a result of routine electronic records management software..." Lorraine, 241 F.R.D. at 580. The proponent of the introduction of the records may need to retain a forensics expert to reconstruct the content of such records. The Louisiana Code of Evidence has a special rule regarding electronic duplicates: 1 7

Art. 1003.1. Electronic duplicates A duplicate may not be deemed inadmissible or excluded from evidence solely because it is in electronic form or is a reproduction of electronically imaged or stored records, documents, data, or other information. ESI may also be admitted under Rule 1006, which permits the presentation of a summary or chart of voluminous records as long as the originals or duplicates are made available for examination by the other parties. Fed. R. Evid. 1006. Email Not surprisingly, there are many ways in which e-mail evidence may be authenticated. One well-respected commentator has observed: E-mail messages may be authenticated by direct or circumstantial evidence. An email message's distinctive characteristics, including its "contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances" may be sufficient for authentication. Printouts of e-mail messages ordinarily bear the sender's e-mail address, providing circumstantial evidence that the message was transmitted by the person identified in the e-mail address. In responding to an e-mail message, the person receiving the message may transmit the reply using the computer's reply function, which automatically routes the message to the address from which the original message came. Use of the reply function indicates that the reply message was sent to the sender's listed e-mail address. The contents of the e-mail may help show authentication by revealing details known only to the sender and the person receiving the message. E-mails may even be self-authenticating. Under Rule 902(7), labels or tags affixed in the course of business require no authentication. Business e-mails often contain information showing the origin of the transmission and identifying the employer company. The identification marker alorie may be sufficient to authenticate an e-mail under Rule 902(7). However, the sending address in an e- mail message is not conclusive, since e-mail messages can be sent by persons other than the named sender. For example, a person with unauthorized access to a computer can transmit e-mail messages under the computer owner's name. Because of the potential for unauthorized transmission of e-mail messages, authentication requires testimony from a person with personal knowledge of the transmission or receipt to ensure its trustworthiness. WEINSTEIN at 900.07 1 8

The most frequent ways to authenticate email evidence are 901(b)(1) (person with personal knowledge), 901(b)(3) (expert testimony or comparison with authenticated exemplar), 901(b)(4) (distinctive characteristics, including circumstantial evidence), 902(7) (trade inscriptions), and 902(11) (certified copies of business record). Authenticating tlt e Emails An excellent article entitled Introducing Email Evidence at Trial, by Ryan Makin (http://apps.americanbar.orgllitigationlcommittees/criminal/articles/fal 12013-121813) states, in pertinent part, as follows: Given the anonymous nature of the Internet and potential for unreliability, the biggest hurdle to overcome when introducing emails at trial is authentication. After all, anyone can open an email account with any name. Unless the author of an email testifies that he or she drafted and sent the email-or someone who observed the author drafting and sending the email testifies, authentication under Federal Rule of Evidence (FRE) 901(b)(1) is "impossible." United States v. Fluker, 698 F.3d 988, 998 (7th Clr. 2012). However, authentication may be established circumstantially by "distinctive characteristics" including information only the sender would know, nicknames, or internal patterns "taken in conjunction with other circumstances." For Instance, call a witness to testify with "significant knowledge" of the author's involvement. Perhaps the author of the email closed with a nickname known only by the victim. United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000). An email may be admissible if coupled with testimony that the author of the email called the testifying party to discuss "the same requests that had been made in the email." Ultimately, "the task of deciding the evidence's true authenticity and probative value [should be] left to the jury." Technological footprints are also helpful. An Internet protocol address, or IP address, identifies which computer sent an email. This Information is quite useful when combined with testimony from the service provider that the IP address from where the email was sent is the party's residence or office and a witness can establish that the party was at the location at the exact time the email was sent. Once you can authenticate one email as being from the author's IP address, it is sufficient to authenticate additional emails "by comparing those emails with other emails from the same IP authenticated through distinctive characteristics." United States v. Saravlan, 435 F. Supp. 2d 36, 40-41 (D.D.C. 2006). So once you call a witness or have other evidence to identify a conversation and connect it to the author, it Is likely "sufficient to allow a reasonable juror to conclude that all other emails associated" are also sent by that author. United States v. Kilpatrick, 2012 WL 3236727 (E.D. Mich. Aug 7, 2012). Similarly, an investigator may also testify to retrieving emails from the author from an email's hard drive. The evidence from a computer drive can establish that 1 9

an email did indeed originate from that party's computer. Sure, an argument can be made that it is possible someone accessed the author's email account and sent the messages. But again, evidence and facts may make the likelihood of this to be a factual issue for the jury to determine. In some cases, emails may also be introduced under the business records exception to the hearsay rule. FRE 803. If an email was sent from a business account, emails may be introduced if the company keeps emails in the regular course of its business and if authenticated by the custodian of records. However, one court would not admit emails into evidence under the business records exception because there was no evidence of a "business duty to make and regularly maintain records of this type." United States v. Ferber, 966 F. Supp. 90, 98 (D. Mass. 1997). Without such evidence, "virtually any document found in the files of a business which pertained in any way to the functioning of that business would be admitted willy-nilly as a business record." Nonetheless, the emails were introduced as a present sense impression. But with the proper foundation, emails retrieved from a corporate computer will likely "fit squarely within the business record exception to the hearsay rule." United States v. Lovett, U. S. Dist. LEXIS 49574 (D. Nev. 2013). Although emails are subject to hearsay limitations, courts have admitted emails into evidence as a statement of a party opponent. FRE 801(d)(2). If the emails were written by a party and are being offered against that party, they are admissible. Entire email chains - which include reply emails by other parties - may be admissible as well for context and not for the truth of the matter asserted. Additionally, emails may be admitted into evidence as adoptive admissions if the "context and content of certain e-mails demonstrate that [the defendant] 'manifested an adoption or belief in the truth of the statements," such as if he or she forwarded the emails. Safavian, 435 F.Supp.2d at 43. However, the forwarded emails must "clearly demonstrate adoption of the contents" to be admitted under Rule 80l(d)(2)(B). Emails may also be introduced as non-hearsay if they go to motive, intent, identity, or state of mind, or help to explain conduct or refute the possibility of mistake or misunderstanding. For instance, an email may explain why the drafter made certain representations. But the jury will be instructed, in substance, that emails "may be considered only insofar as they may have had some impact on [the drafter's] state of mind or provided [the drafter] with a motive." Ultimately, as long as emails remain part of everyday life, they will continue to be an important piece of evidence at trial. Web Pages 20

The leading case on admissibility issues relating to website content is (of course) Lorraine. In studying what is necessary in order to introduce an active web page, Lorraine identifies the areas of foundation that must be addressed: (1) What content is on the website? (2) Does the exhibit or testimony accurately reflect that content? (3) Is that content attributable to the owner of the site? Thus, when seeking to present an active website as evidence it is important to lay a factual foundation that what is being displayed is an accurate reflection of the content currently on the website and that the content is what it purports to be. The easiest way to do this is through a witness with personal knowledge of the website and the publisher of that website. Two Cases Going Different Directions Johnny's Oyster: (St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d 773 (S.D.Tex.1999) The basis for Defendant's Motion to Dismiss surrounds the ownership of CAPT. LE'BRADO at the time of Plaintiff s accident, which occurred on August 26, 1999. Defendant alleges that it "does not now, and did not at the time the alleged incident own or operate the vessel CAPT. LE'BRADO." Defendant notes that on July 1, 1999, ownership was transferred to Oysters R Us, Inc., and on August 1,1999, Oysters R Us, Inc. transferred ownership of the vessel to Shrimps R Us, Inc. Therefore, because defendant is not the owner of the vessel, it seeks dismissal under FED RCiv.P. 12(b)(6). Plaintiff responds that he has discovered "evidence" - taken off the Worldwide Web - revealing that Defendant does "in fact" own CAPT. LE'BRADO, citing data from the United Sates Coast Guard's on-line vessel data base. Plaintiff s electronic "evidence" is totally insufficient to withstand Defendant's Motion to Dismiss. While some look to the Internet as an innovative vehicle for communication, this Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon in his Response to Defendant's Motion. There is no way Plaintiff can overcome the 21

presumption that the information he discovered on the Internet 1s inherently untrustworthy. Anyone can put anything on the Internet. No website is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in FED.RCIV.P. 807. Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form from the United States Coast Guard or discover alternative information verifying what Plaintiff alleges. Contrast Johnny's Oyster with Perfect 10 In Perfect 10 v. Cybernet Ventures, 213 F.Supp 2d 1146, the court addressed the authenticity of internet evidence, in pertinent part, as follows: The great bulk of Cybernet's objections center on Perfect 1O's exhibits printed off of the internet. Cybernet argues these exhibits are insufficiently authenticated. Cybernet points to two cases, United States v. Jackson, 208 F.3d 633, 637 (7th Cir.2000), cert. denied, 531 U.S. 973, 121 S.Ct. 416, 148 L.Ed.2d 321 (2000), and St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774 (S.D.Tex.1999). The Jackson court upheld the exclusion of certain web postings attributed to white supremacist groups because they were insufficiently authenticated. 208 F.3d at 638. As the court viewed the situation, the criminal defendant in the case had to show that the postings, in which these groups appeared to claim responsibility for a series of racist mailings, actually were posted by the groups, as opposed to being slipped on the groups' web sites by the defendant, who was a skilled computer user. Id The St. Clair court took a more extreme view over the admissibility of data taken from the United States Coast Guard's on-line vessel database concerning the ownership of a vessel. The court viewed the internet as "one large catalyst for rumor, innuendo, and misinformation, 11 stated that there was "no way" the plaintiff could overcome "the presumption that the information... discovered on the Internet is inherently untrustworthy. 11 The court then excluded the information as hearsay, rather than "relying on the voodoo information taken from the Internet." 22

Although these out-of-circuit cases are informative concerning the potential pitfalls of internet-based documents, this Court must look to the Ninth Circuit for guidance. In United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000), the Ninth Circuit addressed the admissibility of certain chat room logs. In Tank, the government initiated a prosecution against a child pornography suspect after a search of another suspect's computer files revealed "recorded" online chat room discussions among members of an internet club focused on discussing, trading, and producing child pornography. The recorder of these chat room discussions had deleted from his computer nonsexual conversations and extraneous material, such as date and time stamps. The Tank court observed that the foundational requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. See 200 F.3d at 630 (citing Fed.R.Evid. 901(a)). This burden is met when "sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity." This burden was met where the producer of the logs explained how he created the logs with his computer and stated that the printouts appeared to be accurate representations. Additionally, the government established the connection between Tank and the chat room log printouts. The Court finds that Zadeh's declaration adequately establishes the prima facie case for admissibility in claiming the exhibits attached to his declaration were either: 1) true and correct copies of documents produced by Cybernet in discovery (identified by a CV prefix); 2) true and correct copies of pictures from Perfect 10 Magazine or from Perfect 1O's website; or 3) true and correct copies of pages printed from the Internet that were printed by Zadeh or under his direction. Those webpages that fall under category (3) contain the internet domain address from which the image was printed and the date on which it was printed. The first category is covered by Ma/ jack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir.1996) (discovery documents deemed authentic when offered by party-opponent). See also Orr v. Bank o[ America, NT & SA, 285 F.3d 764, 770-71, 777 n. 20 (9th Cir. 2002) (citing to same). The second and third categories have met the prima facie burden because the declarations, particularly in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a reasonable juror in the belief that the documents are what Perfect 10 says they are. See Tank, 200 F.3d at 630. 23

Moreover, because computer printouts are the only practical 24

method by which the allegations of the complaint can be brought before the Court and there is generally a reduced evidentiary standard in preliminary injunction motions, the Court finds that, as a general rule, Zadeh's declaration is sufficient to establish the exhibits' authenticity. Facebook Postings A Mississippi court found that a witness may authenticate Facebook messages through testimony alone that the messages are what they purport to be. Smith v. State, 2013 Miss. App. 318 (Miss. App. June 4, 2013). In Smith, the prosecution sought to introduce three Facebook messages which appeared to be exchanged between the defendant and the victim's mother. The prosecution contended that two of the three messages were sent by the defendant, who was not the child's father, and demonstrated his anger about caring for the child while the mother worked and expressed his feeling that he "will hurt someone." The first two messages were printed from the mothers Facebook page. The third message was contained in a printed email notification from Facebook. The Facebook-related evidence was admitted over objection, and the defendant appealed the ruling and argued that the trial court erred because the messages were not authenticated and were hearsay. The Mississippi Court of Appeals found that the mother's testimony that she sent and received the messages was sufficient to authenticate them. The court relied on Mississippi Rule of Evidence 901(a), which provides that "authentication... is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims," and Mississippi Rule of Evidence 901 (b )(1), which specifies that authentication is proper through witness testimony. The court looked to a Connecticut decision, State v. Eleck, 130 Conn. App. 632 (2011) which upheld the trial court's decision not to admit Facebook messages, finding that testimony from the alleged recipient of the messages was not sufficient. The Connecticut court noted that 25

testimony from the sender would be one method by which to authenticate the messages but was not available because the alleged sender claimed that her Facebook account had been "hacked." Myspace Postings In Griffin v. State of Maryland, 995 A.2d 791, 192 Md. App. 518, the court discussed the admissibility of Myspace postings to prove that a defendant had been threatened, and stated as follows: On the day after Ms. Barber testified, the prosecutor sought to introduce five pages printed on December 5, 2006, from an Internet Web site for a Myspace profile in the name of "SISTASOULJAH," who was described on that Web page as a 23 year-old female from Fort Deposit. The profile page listed the member's birthday as "10-2-83." It also contained a photograph posted next to the description, showing a "three-quarter view" of an embracing couple. Counsel and the court agreed that the couple appeared to be appellant and Ms. Barber. A "blurb" posted on the profile stated as follows: The court held as follows: I HAVE 2 BEAUTIFUL KIDS... FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!! Under Rule 5-901(a), the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Moreover, Md. Rule 5-901(b)(4) provides, "by way of illustration," that "circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics," may be sufficient to establish that the offered evidence is what it is claimed to be. As indicated, this case involves a profile posted on a social media networking site, Myspace. Such Web sites, which include Facebook, Linkedin, Plaxo, and Twitter, are increasingly popular vehicles for the dissemination of personal information posted on individualized profiles. Social media Web sites offer users multifaceted avenues to "network" with fellow users, along with control over the content of their profiles. The Court of Appeals explained in Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 424 n. 3, 966 A.2d 432 (2009): "Social networking sites and blogs are sophisticated tools of communication where the 26

user voluntarily provides information that the user wants to share with others. The user can choose what information to provide. Moreover, the Brodie Court recognized that these Web sites offer users the opportunity to post messages for the world to see, as well as the option "to tightly control the dissemination of posted information." The design and purpose of social media sites make them especially fertile ground for "statements involving observations of events surrounding us, statements regarding how we feel, our plans and motives, and our feelings (emotional and physical)." Lorraine, 241 F.R.D. at 569. For that reason, both prosecutors and criminal defense attorneys are increasingly looking for potential evidence on the expanding array of Internet blogs, message boards, and chat rooms. See, e.g., Nelson, supra, at 13 ("It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites."); Seth P. Berman et al., Web 2.0: What's Evidence Between "Friends"?, 53 B.B.J. 5, 6 (Jan/Feb 2009) (social networking sites "may record people's thought processes and impressions in unguarded moments, exactly the sort of evidence that can be invaluable during litigation"); Kathrine Minotti, Evidence: The Advent of Digital Diaries: Implications of Social Networking Web Sites for the Legal Profession, 60 S.C. L. REV. 1057, (2009) Back to Basics Again Admissibility of ESI underscores the need to understand the basics. We must apply the familiar rules to types of evidence not even contemplated when the rules were written. As is shown above, those rules are sufficiently adaptable to the situation at hand. As Judge Grimm stated in Lorraine: The discussion above highlights the fact that there are five distinct but interrelated evidentiary issues [relevance, authenticity, hearsay, original writing and unfair prejudice] that govern whether electronic evidence will be admitted into evidence at trial or accepted as an exhibit in summary judgment practice. Although each of these rules may not apply to every exhibit offered, as was the case here, each still must be considered in evaluating how to secure the admissibility of electronic evidence to support claims and defenses. Because it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try. 27

SCREWUPS (SPOLIATION) I. INTRODUCTION. As the use of technology, including email and social media, continues to rapidly expand and more and more information is stored electronically, the destruction of evidence becomes increasingly problematic. The approaches being utilized to combat the destruction or spoliation of ESI vary widely among both the federal and Louisiana appellate circuits, as discussed more fully below. The purpose of the "Screwups" section is to provide an overview of both Federal and Louisiana law concerning the spoliation of the evidence doctrine and the possible ramifications that may flow from a breach of the duty to preserve ESL II. FEDERAL LAW. When a party and/or its counsel has destroyed evidence, after the duty to preserve arises, such destruction or spoliation may constitute sanctionable conduct. In Re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 355995, * 15 (W.D. La. Jan. 30, 2014), citing Ashton v. Knight Transp., Inc. 772 F.Supp.2d 772, 799-800 (N.D. Tex. Feb. 22, 2011)("the mere destruction or alteration of evidence, however, does not, necessarily, mandate a finding that a party has engaged in sanction-worthy spoliation"). Under Federal law, spoliation of the evidence is typically defined as "the destruction or significant alteration of evidence, or the failure to preserve property for another's use in pending or reasonably foreseeable litigation." Id. at *1, citing Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 430 (S.D.N.Y. July 20, 2004). A court's authority to levy sanctions for spoliation derives from two primary sources: (1) its inherent power to control the judicial process and litigation and (2) Rule 37 of the Federal Rules of Civil Procedure. Id. at *12; See also, Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 520-521 (D.Md. Sept. 9, 2010). 28

Generally speaking, sanctions under Rule 37 are reserved for instances where a party and/or its attorney have failed to obey "a court order to provide or permit discovery;" whereas, sanctions under a court's inherent power apply where: (1) no court order has been violated, (2) the conduct occurs prior to commencement of litigation, or (3) there is no statute or rule that adequately addresses the conduct. Id.; See also, Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 611 (S.D.Tex. Feb. 19, 2010). Consequently, most courts imposing sanctions for spoliation of the evidence have relied on their inherent authority rather than Rule 37 of the Federal Rules of Civil Procedure. Nevertheless, as the U.S. Supreme Court cautioned, in Chambers, district courts must exercise their inherent power "with restraint and discretion," and only to the extent necessary. Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S.Ct. 2123, 2135, 115 L.Ed.2d 27 (1991); See also, Rimkus Consulting Group, Inc., 688 F.Supp.2d at 61 l ("When inherent power does apply, it is interpreted narrowly and its reach is limited by its ultimate source -the court's need to orderly and expeditiously perform its duties."). Moreover, if a party's misconduct in the course of litigation can be adequately sanctioned under the Federal Rules of Civil Procedure, "the court ordinarily should rely on the Rules rather than [its] inherent power." Id. Thankfully, the analysis for imposing sanctions pursuant to Rule 37 or the court's inherent authority is "essentially the same." Northington v. H & M Intern., 2011 WL 663055, *12 (N.D. Ill. Jan. 12, 2011). A. The Court's Inherent Authority. Once a court decides to invoke its inherent authority, it has an arsenal of available sanctions for spoliation of electronic evidence. Wm. Grayson Lambert, Keeping the Inference in the Adverse Inference Instruction: Ensuring the Instruction is an Effective Sanction in Electronic Discovery Cases, 64 S.C. L. Rev. 681, 682-683 (2013); See also, Ashton, 772 F.Supp.2d at 801. 29

Indeed, federal district courts have broad discretion in fashioning appropriate sanctions for litigation misconduct based on their inherent authority. Point Blank Solutions, Inc. v. Toybo America, Inc. 2011 WL 1456029, *4 (S.D. Fla. Apr. 5, 2011). Possible spoliation sanctions include: (1) dismissing the case entirely; (2) entering a default judgment; (3) giving an adverse inference jury instruction; (4) striking pleadings; (5) deeming certain facts admitted; (6) awarding attorneys' fees and costs; and (7) imposing fines. Ashton, 772 F.Supp. 2d at 801-802. The sanctions listed in Nos. 1-4 are typically considered drastic sanctions; whereas those identified in Nos. 5-7 are seen as less severe sanctions. Id.; See also, Victor Stanley, Inc., 269 F.R.D. at 536. In crafting an acceptable sanction, courts should keep in mind that the purpose of sanctioning the offending party is to punish, deter and remedy; and thus, the chosen remedy "should be no harsher than necessary to respond to the need to punish or deter and to address the impact on discovery." Rimkus Consulting Group, Inc., 688 F.Supp.2d at 618; See also, Jones v. Bremen High School Dist. 228, 2010 WL 2106640, *5 (N.D. Ill. May 25, 2010). 1. Factors for Spoliation Sanctions. The determination of the appropriate sanction for spoliation is a fact-intensive inquiry, which must be decided on a case-by-case basis. Consolidated Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 339 (M.D. La. July 19, 2006). The Second, Fourth, Fifth, Sixth, Seventh, Ninth and Tenth 4 Circuits have all held that a party seeking sanctions for spoliation of the evidence, including ESI, must prove: 5 4 Some courts in the Tenth Circuit cite to similar, but not the exact same, factors for dispositive sanctions. See Phillips Electronics North America Corp. v. BC Technical, 773 F.Supp.2d 1149, 1210 (D.Utah Feb. 16, 2011)[where the court applied a 5-factor test set forth in Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992)]. 5 See Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F.Supp.2d 456, 467 (S.D.N.Y. Jan. 15, 2010); Victor Stanley, Inc., 269 F.R.D. at 520-521;Rimkus Consulting Group, Inc., 688 F.Supp.2d at 615-616; Jones, 2010 WL 2106640, at *5; BancorpSouth Bank v. Herter, 643 F.Supp.2d 1041, 1059 (W.D. Tenn. June 5, 2009); Melendres v. Arpaio, 2010 WL 582189, *4 (D.Ariz. Feb. 12, 2010); Pinstripe Inc. v. Manpower, Inc., 2009 WL 2252131, *3 (N.D. Okla. July 29, 2009). 30

(1). The party having control over the evidence had an obligation to preserve it at the time it was destroyed; 6 (2). The evidence was destroyed with a culpable state of mind; and (3). The destroyed evidence was relevant to the party's claim or defense such that it would support that claim or defense. The first element referenced, above, includes both the duty to preserve evidence and a breach of that duty. Victor Stanley, Inc., 269 F.R.D. at 520-521; See also, Jones, 2010 WL 2106640 at *5. In this day and age, it is evident the duty to preserve evidence extends to ESL Nacco Materials Handling Group, Inc. v. Lilly Co., 278 F.R.D. 395, 403 (W.D. Tenn. Nov. 16, 2011); See also, Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F.Supp.2d 456, 462 (S.D.N.Y. Jan. 15, 2010). The third element generally requires a finding not only of relevance, but also of prejudice, i.e., "whether the non-destroying party has suffered prejudice from the destruction of the evidence." Consolidated Aluminum Corp., 244 F.R.D. at 346; See also, Victor Stanley, Inc., 269 F.R.D. at 532. Similar factors as those enumerated, above, can be gleaned from the case law in the other federal circuits. 7 For instance, the Eleventh Circuit requires the moving party to establish the spoliated evidence was "crucial," as opposed to relevant, to his or her case. Point Blank Solutions, Inc., 2011 WL 1456029 at *8, n. 8. In addition, the Third Circuit focuses on the "degree of fault" by the offending party, the "prejudice suffered" by the innocent party, and if a lesser sanction could "avoid substantial unfairness" to the innocent party while deterring future misconduct. Mosaid Techs., Inc. v. Samsung Elecs. Co., 348 F.Supp.2d 332, 335 (D.N.J. Dec. 7, 2004). 6 All of the federal circuits recognize that the moving party must establish the alleged spoliating party had a duty to preserve the evidence at the time it was destroyed. Victor Stanley, Inc., 269 F.R.D. at 522. 7 The DC Circuit requires that the moving party establishes the exact same factors in the context of the adverse inference. See D'Onofino v. SFT Sports Grp., Inc., 2010 WL 3324964, *6 (D.D.C. Aug. 24, 2010). The First Circuit addresses these "factors in the context of two separate issues: was there spoliation, and if so, what sanctions are appropriate, with state of mind only figuring into the second issue." Victor Stanley, 269 F.R.D. 497, 521. n. 31;See also, Velez v. Marriott PR Mgmt, Inc., 590 F.Supp.2d 235, 258 (D.P.R. Dec. 22, 2008). 30

The Eighth Circuit has developed a umque set of factors for determining whether sanctions are warranted when ESI has been destroyed pursuant to a company's document retention policy. MeccaTech, Inc. v. Kiser, 2008 WL 6010937, *7 (D. Neb. Apr. 24, 2007), citing Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. Jan. 5, 2004). If the electronic evidence was destroyed prior to litigation, the following factors must be considered by the court: (1). Whether the retention policy is reasonable considering the facts and circumstances surrounding those documents; (2). Whether lawsuits or complaints have been filed frequently concerning the type ofrecords at issue; and (3). Whether the document retention policy was instituted in bad faith. However, if ESI was destroyed after litigation was imminent or begun, the moving party need not establish bad faith. Id. at **7-8. Regardless of the "test" employed, it appears the primary factors courts consider are: (1) mental culpability, (2) relevance and (3) prejudice. Robert A. Weninger, Electronic Discovery and Sanctions for Spoliation: Perspectives.from the Classroom, 61 Cath. U.L. Rev. 775, 784-785 (2012); See also, Lambert, 64 S.C.L. Rev. at 689. 2. Level of Mental Culpability. As discussed more fully below, the federal circuits diverge, somewhat significantly and particularly in the area of e-discovery, regarding the requisite level of culpability for sanction- worthy spoliation. In Re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 355995 at *29, citing Ashton, 772 F.Supp.2d at 800("Courts have not been uniform in defining the level of culpability - be it negligence, gross negligence, willfulness, or bad faith - that is required before sanction are appropriate for the destruction of evidence"). The lack of uniformity within and among the various circuits creates uncertainty and makes it difficult for parties to predict what can happen if they breach the duty to preserve. Victor Stanley, Inc., 269 F.R.D. at 535-536. 31

The U.S. Supreme Court's holding, in Chambers, seems to require a finding of bad-faith 8 before a court can invoke its inherent authority. 501 U.S. at 50, 111 S.Ct. at 2135; See also, In re: Actos (Pioglitazone) Products Liability Litigation, 2014 WL 355995 at *13; In re: Hitachi, 2011 WL 3563781, *6 (S.D. Cal. Aug. 12, 2011). Despite this holding, only the Fifth, Eighth 9 and Eleventh Circuits have held that a showing of bad-faith is necessary before any form of sanction can be imposed pursuant to the court's inherent power. Premier Dealer Services, Inc. v. Duhon, 2013 WL 6150602, *3 (E.D. La. Nov. 22, 2013)(when the court's inherent power provides the legal basis to impose sanctions for spoliation, "the court's authority to sanction is limited to a finding of bad faith"); 10 See also, Point Blank Solutions, Inc., 2011 WL 1456029 at *28("The Eleventh Circuit has stated that the key to unlocking a court's inherent power [to impose sanctions for discovery abuses] is a finding of bad faith."). Furthermore, while a majority of federal circuits have held that bad faith, willfulness or other "egregious" conduct is necessary for dispositive sanctions, such as dismissal, some circuits merely require a showing of "fault," even for the harshest sanctions. Victor Stanely, Inc., F.R.D. at 529-531. 11 However, those courts that only require a finding of "fault," will often "use prejudice as a balancing tool to tip the scales in favor of or away from severe sanctions." Northington, 2011 WL 663055 at *14. The textbook example of conduct warranting dismissal for the destruction of ESI is where the offending party has made deliberate attempts to "wipe" or "scrub" computer hard drives or destroy relevant ESI through other technological means, such as with a disk 8 Bad faith has been defined "as conduct involving fraudulent intent and a desire to suppress the truth." Consolidated Alumnnum Corp., 244 F.R.D. at 344. Bad faith has also been defined as "destruction of evidence for the purpose of depriving the other party of its use." Victor Stanley, Inc., 269 F.R.D. at 530. 9 When the destruction of ESI was due to a document retention policy and occurred before litigation was imminent or began. See MeccaTech, Inc., 2008 WL 6010937 at *7. 10 See also, Sample v. Miles, 229 Fed.App'x 14, 21, n. 20 (5th Cir. Feb. 9, 2007). 11 See also, Appendix to Victor Stanley, Inc., 269 F.R.D. at 542-553, which contains a chart summarizing the requirements by jurisdiction. 32

defragmentation program. Id at *21; See also, Pension Comm. of Univ. of Montreal Pension Plan, 685 F.Supp.2d at469-470. In such a case, all of the federal circuits would agree that dismissal or other terminating sanction should be imposed. However, that is likely where the agreement among the circuits ends. Victor Stanley, Inc., 269 F.R.D. at 529-531, 542-553. The spoliation sanction that best highlights the split among the various circuits regarding the requisite culpability is the adverse inference instruction. 12 On one end of the spectrum are the Third, 13 Fifth, 14 Seventh, 15 Eighth, 16 Tenth, 17 Eleventh 18 and DC 19 Circuits, which all appear to require a finding that the spoliator destroyed ESI in bad faith before a court can impose the adverse inference sanction. Rimkus Consulting Group, Inc., 688 F.Supp.2d at 614; See also, Lambert, 64 S.C.L. Rev. at 691-692. In Rimkus Consulting Group Inc., the United States District Court for the Southern District of Texas held that the following actions constituted a bad faith destruction of ESI and supported an adverse inference instruction: Id at 644. The evidence that the defendants knew about the litigation with Rimkus when they deleted the emails; the inconsistencies in the explanation for deleting the emails; the failure to disclose information about personal email accounts that were later revealed as having been used to obtain and disseminate information from Rimkus; and the fact that some of the emails revealed what the defendants had previously denied. 12 The adverse inference typically permits a jury to infer that the destroyed evidence would have been unfavorable to the offending party. The adverse inference can also take the form of a presumption by allowing the jury to presume relevance and/or prejudice. Victor Stanley, Inc. 269 F.R.D. at 535-536. 13 See Bull v. Parcel United Service, Inc., 665 F.3d 68, 79 (3rd Cir. Jan. 4, 2012). 14 Ashton, 772 F.Supp.2d at 800-801,citing Whitt v. Stephens Country, 529 F.3d 278, 285 (5th Cir. 2008). 15 Northington, 2011WL 663055 at *13 ("bad faith is not a precondition to the imposition of all forms of sanctions for discovery misconduct...[b]ad faith is required for a court to grant an adverse inference sanction"). 16 Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. Apr. 24, 2007), citing Stevenson, 354 F.3d at 747. 17 Pinstripe, Inc., 2009 WL 2252131 at *4, citing Aramburu v. The Boeing Company, 112 F.3d 1398, 1407 (10th Cir. May 5, 1997)(bad faith is required for purposes of an adverse inference instruction). 18 Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F.Supp.2d 1317, 1322-1323 (S.D. Fla. Aug. 23, 2010). 19 Even though the DC Circuit has never explicitly defined the level of mental culpability required for the adverse inference instruction, it appears it would require a showing of bad-faith. Lambert, 64 S.C. L. Rev.,at n. 71;See also, Rimkus Consulting Group, Inc., 688 F.Supp.2d at 614, n. 11. 33

The Fourth Circuit falls in the middle of the spectrum by authorizing the application of an adverse inference upon a showing of willfulness, i.e., that the electronic evidence was intentionally or knowingly destroyed. Sampson v. City of Cambridge, 251 F.R.D. 172, 181 (D.Md. Apr. 30, 2008)(the adverse inference instruction is not appropriate unless the court finds "the spoliator acted, at a minimum, willfully in the destruction of evidence"); See also, Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. Dec. 6, 1995); Hawkins v. College of Charleston, 2013 WL 6050324, *10 (D.S.C. Nov. 15, 2013). In Hawkins, the district court found that the plaintiff had intentionally deleted content from his active Facebook account on two separate occasions, after suit was filed, and further, that around the possible time of deletion, the parties had been actively negotiating production of such content. Hawkins, 2013 WL 6050324 at *9. Based on its findings, the court concluded the plaintiff's conduct was clearly willful, but "stop[ped] short of bad faith." Id. at *11. The district court ultimately declined to grant defendant's motion for dismissal, finding that other remedies, including the adverse inference jury instruction, were available to the defendant. Id. Some district courts within the Third Circuit have likewise concluded a showing of willful or intentional destruction of the evidence (not bad-faith) is sufficient to support the adverse inference instruction. Gatto v. United Air Lines, Inc., 2013 WL 1285285, *3 (D.N.J. Mar. 25, 2013); See also, Mosaid Techs., Inc., 348 F.Supp.2d at 337-338. For instance, in Gatto, the district court held the application of the adverse inference instruction was an appropriate sanction where the plaintiff intentionally deleted his Facebook account, even though the court found no evidence the plaintiff's destruction was "motivated by fraudulent purposes." Id. at *5. These two cases - Hawkins and Gatto - also demonstrate: (1) the importance of treating social media evidence just like any other type of evidence and (2) the potential consequences that can 34

flow from a litigant's decision to remove information from, and/or delete entirely, his or her Facebook (or similar type) account. The Second, 20 Sixth 21 and Ninth 22 Circuits are on the other end of the spectrum as they allow either ordinary or gross negligence to support an adverse inference instruction. Lambert, 64 S.C. L. Rev. at 693; See also, Victor Stanley, Inc., 269 F.R.D. at 529-531, 544, 548, 551; Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107, 108 (2nd Cir. Sept. 26, 2002)("the sanction of adverse inference may be appropriate in some cases involving negligent destruction of evidence because each party should bear the risk of its own negligence"). Although the First Circuit has never taken a position on the type of mental culpability necessary to justify application of the adverse inference sanction, it appears the First Circuit, at least implicitly, recognizes that negligence is sufficient. See Velez, 590 F.Supp.2d at 258. 23 In Pension Comm. of Univ. of Montreal Pension Plan, Judge Scheindlin (the same judge who decided the Zubulake line of cases), identified examples of the type of conduct, in the context of e-discovery, which would constitute ordinary negligence versus gross negligence. Specifically, in Judge Scheindlin's opinion, a party acts with ordinary negligence, after the duty to preserve arises, if it fails "to obtain records from every employee who had any involvement 2 Furthermore, the Second Circuit permits relevance and prejudice to be presumed, in the context of awarding severe sanctions for destruction of ESI,when the spoliating party acted in bad faith or in a grossly negligent manner. Pension Comm. of Univ. of Montreal Pension Plan, 685 F.Supp.2d at 467-468, citing Residential Funding Corp., 306 F.3d at 109. 21 BancorpSouth Bank, 643 F.Supp.2d at 1061 ("the three possible states of mind that satisfy the culpability requirement are (1) bad faith destruction; (2) gross negligence and (3) ordinary negligence"). 22 In Re Hitachi, 2011WL 3563781,at *6(district courts have the power "to sanction under [their] inherent authority not only for bad faith, but also for willfulness or fault by the offending party"). Interestingly, the district court, in In Re Hitachi, held that awarding attorneys' fees and costs pursuant to the court's inherent authority required a finding of bad-faith, citing Chambers v. NASCO, Inc., 501 U.S. 32, 111S.Ct. 2123, 115 L.Ed.2d 27 (1991). 23 However, in a recent opinion by the First Circuit, it stated that the adverse inference "instruction usually makes sense only where the evidence permits a finding of bad faith destruction; ordinarily, negligent destruction would not support the logical inference that the evidence was favorable to the defendant." U.S. v. Laurent, 607 F.3d 895, 902-903 (1st Cir. June 17, 2010). Nevertheless, the First Circuit went on to say that "unusual circumstances or even other policies might warrant exceptions." Id. 35

with the issues raised in the litigation, as opposed to just the key players," or if it fails to "take all appropriate measures to preserve ESL" Pension Comm. of Univ. of Montreal Pension Plan, 685 F.Supp.2d at 465; See also, Michael W. Deyo, Deconstructing Pension Committee: The Evolving Rules of Evidence Spoliation and Sanctions in the Electronic Discovery Era, 75 Alb. L. Rev. 305, 314 (2011-2012). In addition, Judge Scheindlin determined that a party acts with gross negligence, or even willfully in some circumstances, after the duty to preserve has attached, if it: (1). Fails to issue a written litigation hold; (2). Fails to identify all of the key players and ensure their electronic records are preserved; (3). Fails to cease deletion of e-mail or to preserve the records of former employees that remain in the party's possession, custody or control; and (4). Fails to preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources. Id at 47; See also, Deyo, 75 Alb. L. Rev. at 315. Judge Scheindlin further announced, in Pension Committee, that the failure to issue a written litigation hold constitutes gross negligence per se. Id at 464-465. However, this holding was later abrogated by the Second Circuit in Chin v. Port Authority of New York & New Jersey, 685 F.3d 135, 162 (2nd Cir. July 10, 2012). B. Rule 37 of the Federal Rules of Civil Procedure. Pursuant to Rule 37 of the Federal Rules of Civil Procedure, district courts are permitted to levy sanctions against a party who has violated orders to preserve or produce ESL Fed.R.Civ.P. 37(b)(2); See also, Victor Stanley, Inc., 269 F.R.D. at 520. However, courts may not impose sanctions on a party for failing to provide ESI "lost as a result of the routine, good faith operation of an electronic information system," except in extreme circumstances. Fed.R.Civ.P. 37(e). 36

A court's power to sanction disobedient parties under Rule 37 differs from its power to impose sanctions pursuant to its inherent authority in two primary respects. First, Rule 37 presently does not require a showing of "bad faith." Second, the courts have broadly interpreted the authority granted to them by Fed.R.Civ.P. 37(b)(2), as well as what constitutes an "order" for purposes of imposing sanctions. Victor Stanley, Inc., 269 F.R.D. at 520; In Re Actos (Pioglitazone) Products Liability Litigation, 2013 WL 355995 at * 12. For instance, in Victor Stanley, Inc., the defendants delayed production of ESI, deleted, destroyed and otherwise failed to preserve ESI, repeatedly misrepresented the completeness of their discovery production to opposing counsel and the court, and violated several court orders to preserve and produce relevant ESL Id. at 500. As a result, the United States District Court for the District of Maryland entered a default judgment in connection with one of the plaintiff's claims and awarded attorney's fees and costs to the plaintiff for the remaining claims. Id. The district court further treated one of the defendant's "pervasive and willful violations" of its orders to preserve and produce ESI as contempt of court, and ordered that he be imprisoned until such time as he paid the plaintiff the fees and costs awarded by the court. Id. The Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has published for public comment proposed amendments to Rule 37(e). If adopted, Rule 37(e) would only permit a court to impose the sanctions listed in Rule 37(b)(2) or give an adverse inference instruction, if destruction of ESI: (A) caused substantial prejudice and was willful or in bad faith, or (B) irreparably deprived a party of any meaningful opportunity to present or defend its the claims. Sekisui American Corp. v. Hart, 945 F.Supp.2d 494, 502, n. 51 (S.D.N.Y. Aug. 15, 2013). The proposed amendments to Rule 37(e) also set forth specific factors to be considered in assessing whether a party's conduct was willful or in bad faith, including: 37

(A) The extent to which the party was on notice that litigation was likely and the ESI would be discoverable; (B) The reasonableness of the party's efforts to preserve the ESI; (C) Whether the party received a clear and reasonable request to preserve the ESI; (D) The proportionality of the preservation efforts to any anticipated or ongoing litigation; and (E) Whether the party timely sought the court's guidance on any unresolved disputes about preserving discoverable ESL Moreover, such a rule, if enacted, would abrogate all prior court rulings holding that sanctions may be imposed where ESI is destroyed as a result of ordinary or grossly negligent conduct, without a showing that the innocent party has been irreparably prejudiced. Id. III. STATE LAW. There are no Louisiana cases directly addressing the issue of spoliation of ESI, at least, none that have been found. In the absence of any evidence to the contrary, Louisiana courts will likely handle the destruction of ESI the same way as the destruction of other forms of evidence. Louisiana's "counterpart" to Rule 37 of the Federal Rules of Civil Procedure is Louisiana Revised Statute 1471, which allows courts to impose any sanctions that are "just," including those specifically enumerated in the statute, for a party's failure to "obey an order to provide or permit discovery." La.RS. 1471. In fact, Subsection B contains the exact same language found in Fed.R.Civ.P. 37(e) related to destruction of ESI due to a company's routine document retention policy. La. R.S. 1471(B). In the absence of a court order, Louisiana circuits have applied the adverse presumption or adverse inference as a judicial remedy for spoliation of evidence. Bertrand v. Fischer, 2011 WL 6254091, *2 (W.D. La. Dec. 14, 2011); Claview v. Our Lady of the Lake Hosp., Inc., 2012-0560, p. 5 (La.App. 1 Cir. 12/28/12); 112 So.3d 881, 885. In order for the adverse presumption to apply, there "must be intentional destruction of the evidence for the purpose of depriving another party of its use." Randolph v. General Motors Corp., 93-1983 (La.App. 1 Cir. 11/10/94); 38

646 So.2d 1019, 1027. However, the presumption is inapplicable when a reasonable explanation is given for the spoliation. Babineaux v. Black, 396 So.2d 584, 586 (La.App. 3 Cir. 1981). More recently, the trend among Louisiana Circuits has been to recognize a separate tort for spoliation of evidence, mainly due to the inconsistency in the application of the adverse presumption and its ineffectiveness against third parties. Danielle Borel, The Land of Oz: Spoliation of Evidence in Louisiana, 74 La. L. Rev. 507, 515-516 (2014); See also, Robertson v. Frank's Super Value Foods, Inc., 08-592, p.7 (La.App. 5 Cir. 01/13/09); 7 So.3d 669, 673. While all five Louisiana circuits acknowledge the existence of a separate tort for spoliation, they disagree on the elements necessary for a viable spoliation claim, including whether intentional conduct is required. Id.; See also, Bertrand, 2010 WL 6254091 at *2. The First and Fourth circuits have held that intentional or bad-faith conduct is required for a valid spoliation of the evidence claim, whereas the Second and Third circuits have recognized an action for negligent spoliation. Id; See also, Union Pump Co. v. Centrifugal Technology, Inc., 2009 WL 3015076, *5 (W.D. La. Sept. 18, 2009). Some cases within the Fifth Circuit have held intentional conduct is necessary to maintain a spoliation action, while others have found that negligence is sufficient. See Little v. Boston Scientific Corp., 08-271, pp. 16-17 (La.App. 5 Cir. 1/13/09); 8 So.3d 591, 60l (recognizing a separate tort only for intentional spoliation) and Robertson, 7 So.3d at 673-674(recognizing negligent spoliation on the same day Little was decided). In addition, the Second and Third circuits have recently held that the following elements must be proven for a party to state a cause of action in spoliation: "(1) the intentional or negligent destruction of evidence and (2) that the first element was for the purpose of deprive the plaintiff of its use." Aymond v. American Nat. Property and Cas. Co., 48,615 (La.App. 2 Cir. 11/20/13); _So.3d _; Arnold v. Brookshire Grocery Co., 2009-44, p. 2 (La.App. 3 Cir. 39

05/06/09); 10 So.3d 1279, 1280. However, because it is impossible "to do something negligently with a purpose," the two-part "test" developed by the Second and Third circuits has only exacerbated the uncertainty and inconsistency in Louisiana law regarding the tort of spoliation of the evidence. Borel, 74 La. L. Rev. at 508; See also, Victor Stanley, Inc., 269 F.R.D. at 526. The Louisiana Supreme Court has yet to address the level of culpability required to support a viable claim for spoliation. Bertrand, 2011 WL 6254091 at *2; See also, Union Pump Co., 2009 WL 3015076 at *5. As the tort of spoliation of the evidence is derived from the adverse presumption, which requires intentional destruction of the evidence for purpose of depriving the other party of its use, it is highly likely the Louisiana Supreme Court will not recognize a separate tort for negligent spoliation of the evidence. At least two Louisiana federal courts have arrived at the same conclusion. Id.; See also, Union Pump Co., 2009 WL 3015076 at *5("Because the tort of spoliation is founded on principals requiring intentional destruction of evidence to create an adverse evidentiary inference, it would be inconsistent to require intentional conduct for one, but not the other."). Guidance is desperately needed from the Louisiana Supreme Court for a coherent and consistent spoliation doctrine to be implemented in Louisiana. CONCLUSION Electronically stored information presents a number of umque problems. In the discovery phase the procedures that need to be put in place are critical and timing is very important. A good document retention policy and a clear understanding of the duty to preserve by both the client and the attorney are essential. Knowing when the obligation arises will help avoid future problems. Clearly identifying when the duty arises is critical to an effective system. 4

Presentation of electronically stored evidence at trial is governed like other evidence in most regards. Authentication is probably the most important aspect to understand in dealing with electronically stored evidence issues. There are several approaches that will facilitate the presentation of electronically stored evidence, including email, webpage, Facebook and the like. When disaster happens and electronically stored information is either destroyed or lost, there is generally a penalty of some sort associated with it. Case law in both federal and state courts is split on whether the destruction or spoliation of electronically stored evidence must have an element of culpability before penalties are imposed. Pending revisions to Federal Rule of Civil Procedure 37 will go a long way to bringing uniformity and clarity on this issue, particularly for those whose practice is primarily in federal court. 4

KAYE SCHOLER LLP A SAMPLE LITIGATION HOLD NOTICE (CORRESPONDING TO FACT PATTERN) To: All Relevant Employees/Departments From: Chief Legal Counsel of Bank Date: Re: [Send out as soon as C brings action against Bank OR as soon as Bank anticipates lawsuit, whichever is earlier] IMPORTANT PRESERVATION NOTICE -- PLEASE READ IMMEDIATELY As you may know, C, child of D (a deceased former customer of Bank) has filed suit against Bank in the [court name] claiming breach of trust and self dealing, as well as related claims, arising from the sale of apartment building by Bank to B. Apartment building was formerly owned by D and became an asset of a trust created by D before his death. Bank is trustee of D's trust. In that connection, it is important that we preserve all records, including electronic materials, that may be relevant to the legal proceedings. Accordingly, until further notice, please preserve and do not destroy documents that relate to the following topics for the [relevant time period]: -All documents relating in any way to the creation and operation of D's trust; - All documents related in any way to communications between Bank employees and D regarding D's trust and/or the apartment building; - All documents related in any way to communications among Bank employees regarding D's trust and/or the apartment building; - All documents relating in any way to T's recommendation and Bank's decision to sell the apartment building; - All documents relating in any way to the decision to retain independent real estate broker to recommend the asking price for the apartment building; - All documents relating in any way to prior dealings between Bank and independent real estate agent; - All documents relating in any way to independent real estate broker's recommendation regarding the asking price for the apartment building; - All documents relating in any way to Bank's decision to sell the apartment building to B; 3 I 627542.00C

KAYE SCHOLER LLP - All documents relating in any way to the negotiation and execution of the sale of the apartment building to B; B; and building. - All documents relating in any way to Bank's employment and/or termination of - All documents relating m any way to Bank's mortgage on the apartment The above-listed topics should be construed broadly. If there is any doubt regarding whether a document should be retained, you should err on the side of caution and retain it. This directive applies to records in any form, wherever kept. The definition of "documents" includes, for example, all letters, e-mails, instant messages, drafts, informal files, desk files, handwritten notes, faxes, memoranda, forms, calendar entries, address book entries, voice mail, and any other records stored in hard copy, or any electronic form (such as Palm Pilot or Blackberry), or any other medium, whether at the office, home, or anywhere else, that relate in any way to the topics described above. Under no circumstances should any documents relating to the topics listed above be destroyed. If your files contain duplicate copies of documents, all must be preserved if they are non-identical (i.e., they contain annotations); otherwise, duplicates may be discarded. Regarding e-mail communications, I have been in contact with our IT department in order to ensure the preservation of electronic material on the Bank e-mail system. However, if you use or have ever used personal internet e-mail accounts, such as hotmail or yahoo, for Bank business purposes, please contact me or someone else from the Legal Department immediately so that the requisite steps may be taken to preserve any potentially relevant material stored on those accounts. It is essential that all individuals who report up through you and who might have such documents and materials are made aware of these instructions. Please share this communication with them. It is of critical importance to Bank that you comply with these procedures. Employees must take every reasonable step to preserve this information until further written notice from [Bank Legal Department]. Failure to abide by these instructions could result in extreme penalties against Bank and could form the basis oflegal claims for spoliation. If you have any questions or concerns regarding these instructions, please contact me [or designated contact] at [phone number] immediately. Thank you in advance for your cooperation. 31627542.DOC 2

Litigation Hold Letter Dear Georgia College ("GC") has reason to believe that litigation may result from the claim of [name of claimant] that [brief description of potential claim]. OR The University System of Georgia has learned that [name of litigant] has filed a lawsuit for [brief description of claim]. This letter does not mean that you are necessarily involved in the dispute. However, GC is now under a legal duty to preserve all evidence, whether printed or electronic that might become relevant to this matter. Some of this information may be in your possession or control, and as a GC employee, you have a legal duty to preserve that information. The purpose of this letter is to explain to you what that obligation means. A team of [name members of team] has been charged to manage this situation, and has identified the following information as being potentially relevant to the dispute: [describe general subject matter of information]. That information may be located in: [identify likely source locations]. You are required to take the following steps immediately to protect and preserve any of that information that is in your possession or under your control until further notice. Specifically, you will need to do the following immediately: 1. Suspend deletion, overwriting, or any other destruction of electronic information relevant to this dispute that is under your control. This includes electronic information wherever it is stored - at your GC work station, on a laptop, or at home. It includes all forms of electronic communication - e.g., e-mail, word processing, calendars, voice messages, videos, photographs, information in your PDA. This electronic information must be preserved so that it can be retrieved at a later time. You can be assured that nothing will be produced for the other side without first being appropriately reviewed and private or privileged information removed. The information must be preserved in its original electronic form, so that all information contained within it, whether visible or not, is also available for inspection - i.e., it is not sufficient to make a hard copy of electronic communication. The IT department will attend to the preservation of electronic information on the server and on back-up tapes, if that is called for. Your responsibility is for the information that is under your control. 2. Similarly, preserve any new electronic information that is generated after you receive this letter that is relevant to this dispute. 3. Preserve any hard copy under your control. This is an important legal duty and failure to follow these instructions may subject you to discipline, as the failure to preserve this information has very serious consequences for the university. The team that is managing this situation can be available to meet with you to further explain your obligations or respond to any questions you may have about this litigation hold. Thank you for your cooperation.

B SAMPLE DOCUMENT RETENTION POLICY From the January/February 2006 Fraud Magazine column "Fraud & The Law" By Juliana Morehead http://acfe.com/fraud/view.asp?articleld=500 I. Purpose This is on!j a SAM PLE DOCUMENT RETENTION POUCY ('V RP' ), and is NOT LEGAL ADVICE. It is on!j an example of a general DRP and sho11ld not be t1sed ivithot1t revision to meet the partic11lar administrative and legal needs of yo11r 01:ganization. There are many federal, state and local laws that req11ire or;ganizations to retain doct1mentsfar a certain period of time that mqy not represented in this sample po!iry. All companies shottld contact counsel licensed to practice lmv in their state before implementing a DRP. To ensure the most efficient and effective operation of ORGANIZATION ("Organization"), we are implementing this Document Retention Policy ("DRP" or "policy"). The records of Organization and its subsidiaries are important to the proper functioning of Organization. Our records include virtually all of the records you produce as an Organization employee. Such records can be in electronic or paper form. Thus, items that you may not consider important, such as interoffice emails, desktop calendars and printed memoranda are records that are considered important under this policy. If you are ever uncertain as to any procedures set forth in this policy (e.g., what records to retain or destroy, when to do so, or how) it is your responsibility to seek answers from Organization's DRP Manager. The goals of this DRP are to: 1. Retain important documents for reference and future use; 2. Delete documents that are no longer necessary for the proper functioning of Organization; 3. Organize important documents for efficient retrieval; and 4. Ensure that you, as an Organization employee, know what documents should be retained, the length of their retention, means of storage, and when and how they should be destroyed. Federal and state laws require Organization to maintain certain types of records for particular periods. Failure to maintain such records could subject you and Organization to penalties and fines, obstruct justice, spoil legal evidence, and/ or seriously harm Organization's position in litigation. Thus, it is imperative that you fully understand and comply with this, and any future records retention or destruction policies and schedules, UNLESS you have been notified by Organization, or if you believe that (1) such records are or could be relevant to any future litigation, (2) there is a dispute that could lead to litigation, or (3) Organization is a party to a lawsuit, in which case you MUST PRESERVE such records until Organization's legal counsel determines that the records are no longer needed. "Records" discussed herein refers to all business records of Organization (and is used interchangeably with "documents"), including written, printed, and recorded materials, as well as electronic records (i.e., emails and documents saved electronically). All business

records shall be retained for a period no longer than necessary for the proper conduct and functioning of Organization. No business records shall be retained longer than five (5) years, EXCEPT those that (1) have periods provided for herein, (2) are in the Document Retention Schedule, found at Appendix "A", or (3) are specifically exempted by Organization's DRP Manager. II. Management To ensure compliance with this DRP, Organization's DRP Manager is responsible for the following oversight functions: Implementing the DRP; Ensuring that employees are properly educated, understand, and follow the DRP's purpose; Providing oversight on actual retention and destruction of documents; Ensuring proper storage of documents; Periodically following-up with counsel to ensure proper retention periods are in place; Ensuring the proper storage of documents; Suspending the destruction of documents upon foreseeable litigation; and Keeping corporate officers, directors, and employees apprised of changes in relation to the DRP. Organization's DRP Manager shall annually review the DRP, modify it accordingly, and inform and educate all Organization employees on any such changes. All questions relating to document retention and/ or destruction should be directly addressed to Organization's DRP Manager. III. Types of Records Appendix "A", attached at the end of this DRP, lists several categories of records, as well as specific records that contain specific retention periods. This is referred to as a Document Retention Schedule ("DRS"). All records not provided for in the DRS or described herein, shall be classified into three types, (1) Temporary Records, (2) Final Records, and (3) Permanent Records. 1 Temporary Records Temporary records include all business documents that have not been completed. Such include, but are not limited to written memoranda and dictation to be typed in the future, reminders, to-do lists, report, case study, and calculation drafts, interoffice correspondence regarding a client or business transaction, and running logs 1 See Ashcraft, H. of Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP., Document Retention: Guidelines for Managing Project Files, February 2002. Available at http://terrarrg.com/images/pdfs/documentretention.pdf.

Temporary records can be destroyed, or permanently deleted if in electronic form (see protocol below for proper destruction of data in electronic form) when a project/ case/ file closes. Upon the closing of a project/ case/ file, gather and review all such tempora1-y records. Before you destroy or permanently delete these documents, make sure you have duplicates of all the final records pertaining to the project/ case/ file. Upon destruction or deletion, organize the final records (and duplicates) in a file marked "FINAL" and store them appropriately. Final Records Final records include all business documents that are not superseded by modification or addition. Such include, but are not limited to: documents given (or sent via electronic form) to any third party not employed by Organization, or government agency; final memoranda and reports; correspondence; handwritten telephone memoranda not further transcribed; minutes; design/plan specifications; journal entries; cost estimates; etc. All accounting records shall be deemed final. Except as provided for in the DRS, all final documents are to be discarded ten (10) years after the close of a project/ case/ file. Permanent Records Permanent records include all business documents that define Organization's scope of work, expressions of professional opinions, research and reference materials. Such include, but are not limited to contracts, proposals, materials referencing expert opinions, annual financial statements, federal tax returns, payroll registers, copyright registrations, patents, etc. Except as provided for in the Document Retention Schedule (Appendix "A"), all permanent documents are to be retained indefinitely. Accounting and Corporate Tax Records Accounting and corporate tax records include, but are not limited to: financial statements; ledgers; audit records; invoices and expense records; federal, state, and property tax returns; payroll; accounting procedures; gross receipts; customer records; purchases; etc. Unless otherwise specified in the DRS, such records should be retained for the minimum of six (6) years or until the statute of limitations for a particular record expires (please consult Organization's counsel for time periods if you manage/ control such records). Workplace Records Workplace records include, but are not limited to Articles ofincorporation, bylaws, meeting minutes, deeds and titles, leases, policy statements, contracts and agreements, patents and trademark records, etc. Unless otherwise specified in the DRS, such records should be retained in perpetuity.

Employment. Employee, and Payroll Records Employment records include, but are not limited to job announcements and advertisements; employment applications, background investigations, resumes, and letters of recommendation of persons not hired; etc. Unless otherwise specified in the DRS, such records should be retained for the minimum of one (1) year. Employee records include, but are not limited to employment applications, background investigations, resumes, and letters of recommendation of current and past employees, records relating to current and past employee's performance reviews and complaints, etc. Unless otherwise specified in the DRS, such records should be retained for the minimum of three (3) years following unemployment with Organization. Payroll records include, but are not limited to wage rate tables; salary history; current rate of pay; payroll deductions; time cards; W-2 and W-4 forms; bonuses; etc. Unless otherwise specified in the DRS, such records should be retained for the minimum of six (6) years. Bank Records Bank records include, but are not limited to bank deposits; check copies; stop payment orders; bank statements; check signature authorizations; bank reconciliations; etc. Unless otherwise specified in the DRS, such records should be retained for the minimum of three (3) years. Legal Records Legal records include, but are not limited to all contracts, legal records, statements, and correspondence, trademark and copyright registrations, patents, personal injury records and statements, press releases, public findings, etc. Unless otherwise specified in the DRS, such records should be retained for the minimum of ten (10) years. Historical Records Historical records are those that are no longer of use to Organization, but by virtue of their age or research value may be of historical interest or significance to Organization. Historical records should be retained indefinitely. IV. Storage

Tangible Records Tangible records are those in which you must physically move to store, such as paper records (including records printed versions of electronically saved documents), photographs, audio recordings, advertisements and promotional items. Active records and records that need to be easily accessible may be stored in Organization's office space or equipment. Inactive records can be sent to Organization's off-site storage facility. Electronic Records Electronic mail ("E-mail") should be either printed and stored as tangible evidence, or downloaded to a computer file and kept electronically or on a disk. Organization has computer software that duplicates files, which are then backed-up on central servers. If you have a notebook computer from Organization that you work on out of the office, your computer contains synchronization software that duplicates and backs-up files when you log into the network. However, it is important that all employees take precautionary measures to save work and records on Organization's network drive. If you save sensitive or important records on computer disks, you should duplicate the information in an alternate format because disks are easily lost or damaged. V. Destruction/ Deletion Tangible Records Tangible records should be destroyed by shredding or some other means that will render them unreadable. If you have a record that you do not know how to destroy, such as a photograph, compact disk, or tape recording, ask the advice of Organization's DRP Manager. Electronic Records E-mail records that you "delete" remain in Organization's system. Thus, Organization's information technology ("IT") department will be responsible for permanently removing deleted emails from the computer system. Deleting files and emptying the recycling bin is usually sufficient in most circumstances to get rid of a record. However, because electronic records can be stored in many locations, Organization's IT department will be responsible for permanently removing deleted files from the computer system. Keep in mind, where duplicate records are involved, both copies must be destroyed/ deleted where proper. VI. Cessation of Record Destruction/ Deletion

If a lawsuit is filed or imminent, or a legal document request has been made upon Organization, ALL RECORD DESTRUCTION MUST CEASE IMMEDIATELY. Organization's DRP Manager may suspend this DRP to require that documents relating to the lawsuit or potential legal issue(s) be retained and organized. A critical understanding of this section is imperative. Should you fail to follow this protocol, you and/ or Organization may be subject to fines and penalties, among other sanctions. VII. Acknowledgement I have read and understand the purpose of this DRP. I understand that strict adherence to this DRP is a condition of my employment with Organization. If I do not understand something regarding this DRP, I will contact Organization's DRP Manager immediately for clarification. I agree to abide by Organization's DRP. Employee's Signature Date Employee's Name (print)

SAMPLE DOCUMENT RETENTION SCHEDULE This is on(y a SAM PLE DOCUM ENT RETENTION SCHEDULE ('V RS"), and is NOT LEGAL ADVICE. There are matry federal, state and local laws that req11ire organizations to retain docttments for a certain period of time that mqy be different inyo11r state (or different toyo11r particttlar industry), or that ma not be represented in this sample poliry. All companies shottld contact counsel licensed to practice lmv in their state for proper retention periods. TYPE OF RECORD SPECIFIC RECORD SUGGESTED RETENTION PERIOD Accountin Records Annual financial statements Permanent Monthly financial statements 3 years General ledger 20 years Annual audit records 10 years Journal entries 8 years Special reports 8 years Canceled checks 8 years A/P paid invoices 8 years Business expense records 8 years Credit card receipts 3 years Cash receipts 3 years A/R invoices 8 years Data for acquired/ divested Permanent Data for 5 years nonacq uired/ nondivested Accounts payable 7 years Accounts receivable 7 years Audit reports 7 years Chart of accounts Permanent Expense records 7 years Inventory records 7 years Loan documents 7 years after final payment Purchase orders 7 years Sales records 7 years Stop payment orders 3 years Bank reconciliations 3 years Tax Records Federal tax returns (not payroll) State & local tax returns Form 990 & supporting documentation Permanent Permanent Permanent

Form 990-T & supporting Permanent documentation Supporting documentation 4 years for taxes City & State excise tax reports & supporting documentation Unclaimed property filings & supporting documentation 1099 forms 8 years Magnetic tape & similar 1 year records Payroll taxes (W2, W3) Permanent Payroll taxes (Form 941, state withholding forms, state unemployment returns) 5 years (or longer if designated by state law) 6 years (or longer if designated by state law) 8 years (or longer if designated by state law) Payroll Records Wage rate tables 3 years Cost of living tables 3 years Wage 6 years Salary 6 years Payroll deductions 6 years Time cards or forms 5 years W-2 forms 8 years W-4 forms 8 years Garnishments 4 years following unemployment Payroll registers Permanent State employment forms 4 years State unemployment tax Permanent records Cancelled payroll checks 8 years Deductions register 8 years Earnings records 8 years Changes or adjustments to 8 years salary Insurance Records Policies (including expired) Claims for loss/ damage, accident reports, appraisals Permanent 5 years Workplace Records Incorporation & reorganization records Permanent

(Articles of Incorporation, Bylaws, etc) Meeting minutes Policy statements Employee directories Permanent 10 years S years General Contracts Real estate contracts & records Personal injury records Trademark registration Copyright registration Patents Litigation claims Court documents & records Deposition transcripts Discovery materials Leases 3 years after termination 20 years - Permanent 8 years Permanent Permanent Permanent S years following close of case S years following close of case S years following close of case 3 years following close of case 6 years after termination Employment applications (persons not hired) Employment applications (persons hired) Employee resumes & employment history Evaluations Promotions, raises, reclassifications & job descriptions Disciplinary warnings, demotion, lay-off & discharge Employment & termination agreements Promotions & raises Beneficiary information Medical and safety records 1 year 3 years following employment 3 years following employment period 3 years following employment S years following employment S years following employment Permanent 3 years following employment 3 years following employment 6 years

Accident reports Education assistance Sick leave benefits Retirement plans (after expiration) Incentive plans (after expiration) Pension plans (after expiration) 6 years While employed While employed 6 years 6 years 6 years