- Thanks to Dashlane for
keeping LegalEagle in the air.
If this person goes through
and destroys that evidence,
that's called spoliation of evidence,
i.e. the destruction of evidence,
and as you can guess,
that is in fact, illegal.
(heavy metal music)
So the goal of LegalEagle is to help
explain the laws that surround us.
I try my best to accurately
explain legal issues,
while trying to keep things fun as well.
But there are places on the
internet where you'll find,
let's say, dubious legal advice.
And one of those places is the legal
advice subreddit of reddit.com.
You may know Reddit as the place
where you can post just about anything.
It's the place where
people are more preoccupied
whether they can post something,
instead of whether they should.
Do I lurk on Reddit?
I can neither confirm,
nor deny that claim.
Do I sometimes post as
AnonymousLawyer6969?
I won't comment on that.
But let's dig into one of my favorite
insane posts from the last month.
A little background about
myself, I've been a practicing
trial lawyer and veteran
litigator for over 11 years.
I spent 10 years as a senior associate
at two of the most prestigious
Vault 100 firms in the country.
I've represented 100s of clients
from billion dollar companies
to individual artists.
I've passed the bar in five
states including California,
New York, Maryland, Virginia, and D.C.
And yes, I am considering D.C. a state.
It is only a matter of time.
I think this might be a
continuing video series
on this channel, so if you like it,
please give it a thumbs up
and send me other examples
of really terrible legal advice
at my Twitter handle @LegalEagleDJ,
'cause I'm DJ, and you
know, this is LegalEagle.
All right, so let's dig in
to the legal advice post,
"I was just directed by my boss
to delete metadata of files
"being submitted because of a subpoena."
User ParaillegalIT, which
is a great user name, posts,
"I was just directed by my boss
"to delete the metadata of files
"being submitted because of a subpoena.
"This is like massively illegal, right?"
Good guess?
"We are an insurance company
and these files contain
"plenty of private customer data.
"Also contains payment history
"and down payment information.
"They want me to delete
the metadata which,
"while totally possible, is something
"I told my boss was impossible.
"He called me on my B.S. and
told me to do it or get fired.
"I am the only IT guy,
so if I do not do it,
"it will not get done.
"I am thinking about walking
out the door right now
"and never coming back.
"I am also thinking of doing a full
"Win 10 reset on my personal PC.
"What laws, if any, would this violate?
"Who do I report this to?
"If illegal, I will be reporting it.
"I hate this company, I hate my boss,
"and I hate my coworkers.
"I would lose no sleep at
them being utterly destroyed
"by a judge somewhere.
"This is a company of five people,
"so no HR or legal
department, what to do?"
Now, before I dig into
this, I need to obviously,
tell you that this is not legal advice,
I am not your lawyer, I am
not offering legal advice,
neither to you the viewer,
or to this particular user paraillegalIT.
I am just your friendly
neighborhood legal eagle,
your friend who says everything
that you do is always illegal.
Sorry to be the buzzkill, but
stop doing illegal things.
So there's a couple of
things going on here.
It looks like the boss here is trying
to accomplish one of several things.
One, he could be trying to make it harder
for the other side to review the documents
by deleting metadata, or number two,
he may be hiding evidence of wrongdoing,
so not only will it make it
harder to review documents,
but he may be getting
rid of crucial evidence.
It depends on the nature of the suit,
which we don't happen to know here.
But let's talk about how discovery works
and how this person found
themselves in this situation.
In civil discovery, one side
sends document requests.
Those are allowed under the Federal Rules
of Civil Procedure, Rule 34.
These requests have to specify exactly
what you're looking for, I mean right down
to every single word that
is used in the request,
because if there's any ambiguity,
it's going to cause problems later on.
The other side can object,
and if they continue to object
and refuse to comply, then you
might have to go into court
and get an order forcing the other side
to comply with your document request,
which is yet another
reason why the request
should be worded correctly,
because if you didn't
word them correctly, then the other side
might not have to comply.
Now that's just between
two parties to a lawsuit.
Like a plaintiff and a defendant.
But if you're trying to get
documents from a third party,
then you have to issue
what's called a subpoena.
Now, a subpoena is
basically the same thing
as a Rule 34 document request,
it's just that there are
a couple of extra strings
attached because you're trying
to get documents from
someone who has nothing to do
with the lawsuit
whatsoever, so it's gonna be
a little bit more difficult.
But generally, you can get the court
to force them to comply as well.
Now, as I said, it's really important
for the document request
to be very, very specific
because the lawyers on the other side
are going to scrutinize your request.
And if there is any way to get
out of that document request,
they will find it.
So often, you will have specific
language in your request
that includes
electronically-stored information
like metadata, or you'll
just have an agreement
with the other side to deal with ESI.
Back in the day, document
requests just meant
requesting actual, physical documents.
But now, it's almost always
electronic documents,
things like emails and databases.
And as a result, the federal courts
and lots of different states
have created rules for dealing
with electronically-stored
information like metadata.
In case you aren't familiar with metadata,
it's described as the data about data.
If you think about an
email that you receive,
that email will have a subject line.
It will have to, from, BCC.
It'll have the body of the email
and the text of that email is searchable.
All of that would be considered
electronically-stored
information and much of that
would be considered metadata.
Now imagine if you took
a picture of your email,
and then you sent that
picture to someone else.
Well, you wouldn't be
able to sort that email
by the to-line or the
from-line or the subject line.
And the computer can't search
the text of that picture
because it's just one
block of information.
So, the metadata can be
incredibly important.
It can tell you when things were sent.
When things were received.
It can tell you what's inside
of the document itself.
So it can be, not only important
for a particular lawsuit,
but it can also make a
lawsuit so much less expensive
in terms of searching
things, because if you have
just a bunch of emails,
then you can sort them,
you can search them, you can do
all of that stuff very easily.
You'll see on TV often,
that the other side will try
to bury the other side in documents,
and they'll just send a truckload over
of physical paperwork.
And sometimes that does happen.
Courts are savvy to
that now, and if you try
and pull that crap, you just
go into court and you say,
"Look, it's ridiculous that
they're trying to give us
"paper documents when it would
have been easier for them
"to turn over just a hard
drive full of information,
"and we're not gonna go
through the expense of scanning
"all of this information,
and then searching it."
So, what you see on TV
has a grain of truth,
but if you're a good
litigator, you should be able
to avoid circumstances like that.
Now in the circumstances that
are set out by ParaillegalIT,
it's unclear how much
data has been subpoenaed.
But if the employer feels that it would be
overly burdensome to
have to respond to it,
the correct method of dealing with that
is not to delete the
documents and the information.
The correct way of dealing with that
is called a motion to
quash, which is basically,
just a motion, you go into
the court and you say,
"It's ridiculous that we
have to comply with this.
"We're not parties to this proceeding,
"so why should we have to undergo the cost
"of responding to these
ridiculous document requests?"
But, the way I read this
post is that it sounds
like the documents have been identified
and they are responsive to the subpoena
and it's not overly
burdensome to respond to them.
So that means that if
this person goes through
and destroys that evidence, that's called
spoliation of evidence, i.e.
the destruction of evidence.
And, as you can guess,
that is in fact illegal.
If the court finds out
that this company has
destroyed evidence, there are
probably three different kinds
of sanctions that it would
issue against the company,
and potentially, this individual.
First are issue/inference sanctions.
Second are monetary sanctions,
and third is litigation-ending sanctions.
Destroying the metadata could
easily lead to sanctions
by the trial court based on the assumption
that the employer had something to hide.
And as the employer has effectively hidden
whatever that was, the court
would be forced to assume
that whatever the other
party alleged was true.
This could lead to what's
called an issue sanction,
meaning that a jury, or the court
in this particular incidence,
would be instructed that
whatever was at issue,
had been determined in
favor of the other side.
Affectively, this would be like
a court-required admission
by the other side.
This would of course, negate any advantage
that the employer thought he might gain
by destroying the data.
When you engage in these
kind of shenanigans,
what tends to happen is
the court orders you to pay
the costs and fees of the other side
for having to file a motion for sanctions,
or to try and recreate the
data that you destroyed.
Those are called monetary sanctions.
And if your conduct is bad
enough, then you can get
what are called
litigation-ending sanctions,
where the court just
says, "You have engaged
"in such a nefarious
act, that we're going to
"end this suit and find against you."
criminal sanctions are possible,
but they're pretty unlikely.
We've seen spoliation of
evidence in a few high-profile
cases like the Waymo
versus Uber litigation,
where they dealt with
a trade secret dispute
over an employee that left
from one employer to the other.
And in that case, the
plaintiff sort of stakes
the outcome of the case
on Uber's destruction
of text messages, saying
that because Uber destroyed
these relevant text messages,
that the court had to make
a negative inference
against Uber, and therefore,
basically the other side
should have won the case.
Now generally, you can
only get sanctions against
the other side when they have
engaged in willful destruction
or sometimes, grossly negligent
destruction of evidence.
That's why an attorney
will send what's called
a litigation hold letter
to inform the other side
that they have to preserve documents,
lest they be liable for
spoliation of evidence.
So, what is this hapless
IT professional to do
under these circumstances?
Well, to figure that out, let's do
our very first comment review.
(rock music)
So, the first comment of note
comes from chivil61 that says,
"First, are you being
asked to permanently delete
"the metadata, or just
remove it from copies
"that will be produced in
response to the subpoena?"
This is an excellent observation,
and we'll get to that in just a second.
"Permanently deleting metadata is likely
"spoliation of evidence,
and is a huge no-no."
Absolutely correct.
"However, if you are simply
removing the metadata
"from the files before
production, it could be okay,
"depending on the format in which
"the files have been subpoenaed."
So, what this person is pointing out is,
going back to what I stated
at the very beginning
of this video, which
is that you have to be
incredibly precise in terms
of what you are asking for.
And often, you'll have
a separate agreement
about what to do with ESI like metadata.
What this person is pointing out is that,
perhaps this IT professional
has misunderstood
what the boss is asking,
and what's very common
in litigation is that if you have agreed
to turn over electronic
documents without metadata,
then you would strip it out
before you turn it over to the other side.
And assuming that there is
some agreement to that affect,
that's totally okay,
that's absolutely kosher.
However, in almost any
circumstances that I can think of,
if you have been instructed
to permanently delete
the metadata off of your computer,
or the company's computer,
such as it can never
be recovered, that's definitely
spoliation of evidence.
So, getting that kind of
clarification before completely
freaking out would
probably be a good idea.
Now user naturalborncitizen writes,
"I would definitely get this in writing,
"i.e. 'Just to confirm, are
you requesting that I am to
"'delete all metadata from
these subpoenaed files, or just
"'certain fields, and if only
certain fields, which ones?'
"Then print and save
the response somewhere,
"and if possible, find somebody
at the applicable court
"to send a copy to."
Now I'm a little weary about
sending it to the court,
but it is almost always a good idea
to get things in writing.
Not only is it a good
idea to get it in writing
from the particular
boss to make absolutely,
crystal clear that he
is asking this person
to delete permanently, the metadata,
but he might even copy
the corporate counsel
and make sure that the counsel is aware
of potentially illegal
spoliation of evidence.
This might do a couple of things.
Number one, the thing about lawyers is
that we tend to not like illegal things
going on under our noses.
So if it's brought to
the lawyer's attention,
and it is what this person says it is,
number one, he'll get
clarification of what he's
being asked to do, and number
two, he may have someone
champion his cause and
intervene to try and prevent
the illegal destruction of evidence.
And there's probably also a third reason
why it would be very, very
important for this person
to get this instruction in writing.
Most states have laws
that protect employees
who refuse to do illegal things,
and then are fired by their employer.
And the only thing better
than doing the right thing
is having a paper trail
of doing the right thing.
Now if I've learned anything from Reddit,
it's that this Redditor
is just one step away
from changing all of
the companies passwords
and posting it to r/ProRevenge.
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So, do you agree with my analysis?
Leave your objections in the comments,
and check out my other real
lawyer reactions over here,
where I will see you in court.
