E-Discovery Gone Wrong: The Blooper Reel

Five years after the changes to the Federal Rules of Civil Procedure (FRCP) our professions should have worked out the kinks in collecting, processing, culling, reviewing, and producing electronically stored information (ESI). 

And yet, most haven’t. ESI is still being created in the main through the use of Microsoft Word and Outlook for written communications. Social networking and smartphones and tablets are complicating matters, but they’re not yet primary sources of discoverable ESI.

Virtualization and cloud computing are adding to the complexity of the enterprise technology environment. While that contributes to e-discovery challenges, it doesn’t justify most of the issues being presented by litigants. The main problems lie elsewhere. 

Here’s a collection of key takeaways from recent cases involving e-discovery errors.

 Apple v. Samsung: 1) Don’t Rely on Self-Collection and 2) Turn Off Auto-Delete
  • Aug. 4, 2010: Samsung is put on notice by Apple that they may be infringing Apple’s patents, establishing reasonable foreseeability of litigation.
  • Seven Months Later: Samsung begins sending out legal hold notices in earnest, but does not monitor custodian self-preservation notices to the 2300 custodians on hold, choosing instead to trust the custodians to self-collect thoroughly and appropriately.
  • California Magistrate Judge Paul Grewal sanctions Samsung for destroying evidence based on continuing its practice of automatically deleting company email every two weeks even after notice of impending litigation.
  • Recommended: Adopt a collect-to-preserve approach and remove the responsibility from individual custodians. Automate issuance and tracking of legal hold for faster initiation.

Delta /AirTran Baggage Fee Antitrust:  1) IT’s Error is Counsel’s Error and 2) Take an Active Role in Communication and Verification
  • Delta counsel makes approximately 20 assertions to the court that all responsive ESI has been produced.
  • In fact, counsel and its IT department inadvertently fail to collect and search several hard drives and to locate several backup tapes prior to the close of discovery, then deliver 60,000 pages of responsive ESI after discovery cutoff date.
  • Delta counsel attempt to dodge and weave by asserting that they had relied on representations given by their IT department.
  • Turns out “inadvertent” isn’t an excuse. U.S. District Judge Timothy Batten says that counsel is responsible for adequate follow up with its IT department and orders Delta to pay plaintiffs’ legal fees.
  • Recommended: Follow up with and require confirmation from I.T. departments that each hard drive or device in a list for collection actually have been collected and searched. Take an active role in collection and maintain an efficient and complete communications stream.

Chin vs. Port Authority: 1) Issue a Written Legal Hold Notice; 2) Supervise E-Discovery Efforts
  • Plaintiff Howard Chin asserts that Port Authority acted with gross negligence in failing to issue a written legal hold notice and seeks a spoliation sanction.
  • The appellate court rejects this.
  • The court’s rejection is seen as a rebuff to Judge Shira Scheindlin’s Pension Committee ruling, although failure to institute a litigation hold is merely one factor in her ruling of gross negligence.
  • Other factors in Judge Scheindlin’s decision were the fact that plaintiffs continued to delete ESI after the trigger event and failed to request documents from key custodians.
  • Recommended: Establish a highly automated and transparent legal hold process as part of a defensible e-discovery process.

What are your best practices? Enlighten us or debate the cases cited here in the Comments section below.
Chad McManamy

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