A few months ago, we blogged on the In re Delta / AirTran Baggage Fee Antitrust Litigation, --F. Supp. 2d--, 2012 WL 360509 (N.D. Ga. Feb. 3, 2012) as to the issue of the failure to have a defensible process for making sure that all of your collected evidence gets put into your review / processing platform. I recently reviewed the opinion again and noticed a second important lesson from the case --- the need to harmonize your productions across different cases and law firms.
The shoe that dropped in the Delta Airlines case was that after making repeated assurances to the Court that counsel for defendants had produced all relevant documents for the bag-fee case, 60,000 pages of documents surfaced from a separate DOJ investigation against the defendant that were relevant and had not been produced in the baggage-fee case. Upon investigation by defendant as to why the documents had not surfaced for the case, defendant explained that the documents were collected and reviewed in the DOJ investigation by a law firm that was not involved in the baggage fee case. In other words, the defendant had a classic case of the right-hand law firm not knowing what the left-hand law firm was doing. The Court described the oversight as a “huge hole” in the defendant’s electronic discovery process and granted plaintiffs’ motion for sanctions, including the costs of extending the discovery period for the newly-produced documents.
Law firms working with blinders on and focused on the particular case at hand is nothing new. It is an institutional factor endemic to the litigation process. Each case stands or falls on its own merits. Accordingly, ESI routinely is collected, processed, and reviewed on a case-by-case basis, without little or no view into what has been done for other cases.
Guidance’s EnCase eDiscovery provides two ways to mitigate such risks. First, our on-premises software provides Collected Data Re-Use, which allows the search of previously collected evidence containers across multiple cases for evidence that, as in the Delta case, was collected for a different matter but was relevant to the case at hand. Second, CaseCentral’s single instance repository provides a highly-efficient method to reduce ESI across multiple cases to its lowest common denominator (e.g., de-duping files and only storing a single copy), and to keep track of different matters for which the ESI is relevant.
In the Delta case, the combination of these solutions would have allowed the defendant to (1) search across individually collected evidence files from other cases and determine if such evidence was relevant to its baggage-fee case and (2) store only a single-instance of the files in its evidence repository and manage the same evidence across multiple cases.
Of course, the primary lesson about having a solution that enables a defensible process for tracking evidence from collection through review remains. The case illustrates that having a defensible process is more than just about hashing files or having secure evidence containers --- it is about having the right solution end-to-end that is focused on actual litigation work-flow needs beyond review and archiving.
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