Why an In-House Review Solution Requires a Fully Integrated Collection Solution

John Blumenschein

Judge Timothy C. Batten, Jr. of the United States District Court for the Northern District of Georgia recently issued discovery sanctions against Delta Airlines for failing to properly disclose 60,000 pages of documents in In re Delta/AirTran Baggage Fee Antitrust Litig., --F. Supp. 2d--, 2012 WL 360509 (N.D. Ga. Feb. 3, 2012), a copy of which can be found here. As a result, Delta was ordered by Judge Batten to pay reasonable attorneys fee and costs associated with the sanctions motion, as well as the costs of the additional discovery.

At issue in the case was Delta’s document production. The missing 60,000 pages of documents, which pertained to bag fees, were discovered as a result of a disclosure by Delta to a Department of Justice document request in an unrelated investigation. Delta determined that the missing documents had been stored on the hard drives of custodians and were not located on any shared server drive or any network email server.

Prior to plaintiff’s motion for sanctions, Delta took steps to disclose all of the documents that had not been produced earlier. None of these documents were considered a “smoking gun,” but in fact helped bolster Delta’s legal position.

As a result of not properly disclosing the 60,000 pages of documents, the Court imposed sanctions on Delta, finding that Delta failed to conduct a reasonable inquiry of the discovered documents in violation of Federal Rule of Civil Procedure Rule 26. The Court did not immediately issue a dollar amount on the sanction. The Court allowed the parties to brief amount of sanctions Delta would owe the plaintiffs. That briefing is ongoing. The Court found that Delta had a “huge hole” in its production procedures because there was no way to confirm that all of the necessary hard drives had been turned over for imaging and scanning.

The problem was compounded because Delta’s counsel had consistently informed the court that everything had been produced. Under Rule 26(g), a party signing discovery papers must certify that the responses are complete and correct to the best of the attorney’s knowledge after a reasonable inquiry. Here, the Court found that attorneys for Delta did violate Rule 26(g) because they did not conduct a reasonable inquiry to ensure all the necessary hard drives had been searched.

What is noteworthy about the Delta case is that an in-house review solution was mentioned repeatedly in the opinion. Clearly, simply having a review solution by definition is not enough to have a defensible in-house process for e-discovery. A review solution on its own does not address the area where 95% of the risk of e-discovery sanctions exists – preservation and legal hold.

Not only do the preservation and legal hold stages hold the most risk in the e-discovery process, but the issues surrounding those stages are usually not realized until it is very late or too late in the e-discovery process. EnCase eDiscovery is the only solution to allow for full integration of Pre-Collection Analytics, Legal Hold, Preservation & Collection, and First Pass Review. EnCase eDiscovery’s integrated solution allows legal and technical personnel to communicate and work together to avoid “holes” such as those that surfaced in the Delta case.

Click here to learn more about how EnCase eDiscovery with the addition of Case Central can help your organization achieve a complete and unified e-discovery solution.

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