The case is attracting significant attention because of its finding of civil contempt on the part of the Defendants. Judge Grimm has ordered the Defendant's President to be imprisoned for up to two years, unless and until he pays Plaintiffs' fees and costs relating to the motions for spoliation of evidence. The opinion echoes the continuing frustration of the courts for parties not doing the right thing when they have a lawsuit --- preserve ESI.
Judge Grimm is dumb-founded to find yet another case where a party fails to implement a litigation hold on key data sources and fails to take any reasonable measures to preserve data. Slip op. at 13-14. Moreover, the key bad actor for the Defendant was found to have deleted nearly ten thousand files during the discovery stay. Id. at 24. Judge Grimm observes that the culmination of bad acts and omissions relating to preservation of ESI "constitute the single most egregious example of spoliation that I have encountered in any case that I have handled or an any case described in the legion of spoliation cases I have read in nearly fourteen years on the bench."Id. at 34.
What is clear from Judge Grimm's opinion, as well as the recent Sedona emphasis in proportionality, is that the courts are not looking for organizations to "boil the ocean" and completely revamp their entire IT systems and architecture in order to respond to discovery requests. Judge Grimm echoes the frequent refrain that the preservation duty "pertains only to relevant documents" and is "neither absolute, nor intended to cripple organizations."Id. at 49-50. The court's view of whether preservation conduct is acceptable in a case depends on what is reasonable and whether what was done (or not done) was proportional to the case.
EnCase® eDiscovery's patented Optimized Distributed Search ("ODS") capability helps to demonstrate a defensible and cost-effective preservation process - collect and preserve only what is relevant to a lawsuit from reasonably accessible data sources (laptops, desktops, servers, ECM repositories) when you need it. There's no need to index or archive your entire IT environment.
EnCase® eDiscovery's new First Past Review capability also enhances another important step in the ESI preservation process - assessing the accuracy and validity of selected search terms. This new interface designed for Legal Departments allows non-technical personnel to get granular analytics on the specific impact of search terms on a data set. This functionality is key to demonstrating a defensible process, as Judge Grimm observes that "failure to assess the accuracy and validity of selected search terms also could be negligence." Id. at 64 (citations and internal quotations omitted).
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