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.

Another Lesson from Delta Airlines – The Need For Evidence Re-Use And A Single Instance ESI Repository To Harmonize Productions Across Different Law Firms And Cases

Daniel Lim

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.

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.