Another lecture for my “Intro to computers” class, and another item on the litigator's checklist.
http://ralphlosey.wordpress.com/2007/05/04/adverse-inference-entered-against-plaintiff-employee/
Adverse Inference Entered Against Plaintiff Employee
In employment litigation spoliation sanctions are usually a tactic of the employee plaintiff against the big corporate employer. The employer is the one with the vast collection of computer records where it is easy to mess up on the duty to preserve and produce. For this reason the employer is usually the one charged with spoliation. That was certainly the case in the Zubulake decisions. But lately employers have seen the value of e-discovery and their own spoliation motions. That is exactly what happened recently in Charlotte, North Carolina, where Target Stores is defending a sex discrimination claim. Teague v. Target Corporation, 2007 WL 1041191 (W.D.N.C. April 4, 2007). One of Target’s affirmative defenses to the suit is “failure to mitigate.”
In deposition Plaintiff revealed that after she was fired she engaged in an extensive job search on her home computer. This would tend to rebut Target’s defense of failure to mitigate. She also testified that she used the computer to communicate regarding her alleged discriminatory firing, and the circumstances of her discharge. Problem is, she no longer has that computer anymore. She said her home computer crashed and that her brother, who “dabbles in computers,” was unable to get the hard drive to work. So, she threw it away. Big mistake! Because by that time she had already retained legal counsel to sue Target, and had already filed charges with the EEOC. With her home computer gone, she had very few records regarding her claim. It was all pretty much a matter of her word against Targets. Still, her deposition testimony indicated that her computer, if it were still around, would have had evidence that the court held “related directly to her law suit against Target.”
Once the employer discovered these facts it moved for sanctions on the basis of spoliation of the computer evidence. The court found that the plaintiff had a duty to preserve the evidence, even though suit had not yet been filed, because she had retained counsel and filed EEOC charges. The destruction of the evidence by throwing away her computer was sufficient to show she had a “culpable state of mind.” The motion was granted. Although the court did not find her conduct severe enough to warrant complete dismissal of the case, it was severe enough to warrant an adverse inference jury instruction. Such an inference is almost always case dispositive.
Denver should take note...
Judge says NY surveillance data can be made public
Fri May 4, 2007 5:23 PM ET By Daniel Trotta
NEW YORK (Reuters) - Six hundred pages of documents relating to intelligence that New York City gathered before the 2004 Republican National Convention should be made public, a federal judge ruled on Friday.
Judge James Francis of U.S. District Court in Manhattan struck down the city's attempt to keep the documents confidential, but agreed to keep them sealed pending a possible city appeal.
... The city had argued their publication could influence potential jurors in a larger case, yet to go trial, in which about 90 protesters who were arrested at the convention are suing the city alleging their rights were violated through mass arrests, prolonged detentions and blanket fingerprinting.
... "Notably, the city does not contend that these documents must be kept confidential because of security concerns or because public disclosures would jeopardize legitimate law enforcement interests," the judge wrote in 14-page ruling.
... The surveillance was carried out by an intelligence branch created after the September 11 attacks to gather information on threats to public safety and reduce the city's reliance on the federal government.
Interesting. Why give up customers who are using the next technology most likely to replace yours? Why give up any customer voluntarily?
http://yro.slashdot.org/article.pl?sid=07/05/05/2019228&from=rss
AT&T Dumps VOIP Customers
Posted by kdawson on Sunday May 06, @02:53AM from the don't-let-the-door-hit-you dept. Communications
Proudrooster writes "In the past two weeks AT&T has sent out disconnect letters to VOIP customers in big rude red letters, stating that VOIP service will be suspended in 30 days and permanently disconnected in 60 days. They cited E911 service as the reason. (It is peculiar that AT&T is unable overcome an E911 technical hurdle, since SBC/AT&T is also the local landline company in many areas where VOIP cancellation notices are being received.) Many AT&T VOIP customers have found that they are unable to transfer their phone numbers to a new provider. Further, AT&T is unwilling to set up a forwarding message directing callers to a new phone number for those who are unable to transfer their old numbers. In effect, AT&T has told many long-term VOIP subscribers: 'We are turning off your phone in 30 days, goodbye.'"
Too lazy to read? Perhaps this technology will be adopted by our schools to keep students safe from serious paper cuts?
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