Tuesday, December 2, 2008

Year in review: courts unsympathetic to electronic discovery ignorance or misconduct

Kroll Ontrack analyzes and reviews the most significant electronic discovery cases in 2008

Minneapolis – Dec. 2, 2008 – Kroll Ontrack®, the industry leader in electronic discovery, computer forensics, electronically stored information (ESI) consulting, jury consulting and courtroom presentation services, today announced its analysis of the reported electronic discovery opinions and top five most significant discovery cases in 2008. Among the dominant topics reoccurring in the 2008 judicial opinions were the importance of creating and enforcing sound document retention policies, the use of proper search terms for production, and the consequences when parties fail to properly comply with discovery requests.

Of the approximately 138 reported electronic discovery opinions issued from Jan. 1, 2008 to Oct. 31, 2008, over half addressed court-ordered sanctions, data production, and preservation and spoliation issues. The breakdown of the major issues involved in these cases is as follows:

  • 25% of cases addressed sanctions
  • 20% of cases addressed various production considerations
  • 13% of cases addressed preservation and spoliation issues
  • 12% of cases addressed computer forensics protocols and experts
  • 11% of cases addressed discoverability and admissibility issues
  • 7% of cases addressed privilege considerations and waivers
  • 7% of cases addressed various procedural issues
  • 6% of cases addressed cost considerations

"It is clear that courts are no longer allowing parties to plead ignorance when it comes to ESI best practices," said Michele Lange, director of Legal Technologies for Kroll Ontrack. "These cases exemplify that judges can and will hand out sanctions for mishandling ESI and lack of document retention policies. Having a well-crafted document retention policy, ensuring cooperation between legal and IT departments, and partnering with an e-discovery expert can help prevent the same mishaps described in these cases, ultimately saving organizations hundreds of thousands in sanctions and reputation damages."

The top five most significant cases from 2008 that summarized these issues included:

Court Imposes Sanctions for "Egregious" E-Discovery Misconduct
Keithley v. Homestore.com, Inc., 2008 WL 3833384 (N.D.Cal. Aug. 12, 2008).
In this patent infringement litigation, the defendants' failure to issue a written document retention policy well after its preservation duty arose led the court to label the discovery misconduct "among the most egregious this court has seen." The court ordered the defendants to pay over $250,000 in fees and costs associated with prior and future motion practice and expert fees, deferring additional amounts until actual fees can be determined, while also imposing an adverse jury instruction against the defendants.

Court Orders Forensic Examination and Denies Cost Shifting, Citing Producing Party's Discovery Misconduct
Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008).
In this ongoing contract dispute, the court followed up on its previous holding that it was appropriate to ascertain the cost of a forensic examination to determine if the cost was justified. The court found the defendant's inadequate search efforts, failure to preserve electronically stored information and overall unwillingness to take "discovery obligations seriously" caused the need for a forensic examination. Since the problem was one of the defendant's "own making," the court refused to shift costs.

Court Orders Production of Text Messages
Flagg v. City of Detroit, 2008 WL 3895470 (E.D.Mich. Aug. 22, 2008).
In this ongoing wrongful death action, the defendants argued the court's previous order that established a protocol for the production of text messages violated Stored Communications Act. The court was willing to modify the means of production and ordered the plaintiff to file a Fed.R.Civ.P. 34 production request, finding a third-party subpoena unnecessary. See also Flagg v.
City of Detroit
, 2008 WL 787061 (E.D.Mich. Mar. 20, 2008).

Magistrate Orders Parties to Cooperate in Production and Advised Expert Testimony May be Needed for Judicial Review of Search Methods
United States v. O'Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008).
In this criminal prosecution, the co-defendant filed a motion to compel claiming the government did not fulfill discovery obligations. Applying the Federal Rules of Civil Procedure to this criminal action, Magistrate Judge John M. Facciola ordered the parties to participate in a good faith attempt to reach an agreement on production. The court also suggested that judicial review of search methods may require expert testimony, since for lawyers and judges to make search term effectiveness judgments are to go "where angels fear to tread." See also United States v. O'Keefe, 2008 WL 3850658 (D.D.C. Aug. 19, 2008).

Court Denies Motion to Retract Privileged Documents Finding Lack of Reasonable Precautions Taken
Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008).
In this copyright infringement case, the plaintiff sought a ruling that 165 electronic attorney-client privileged and work-product protected documents produced in discovery were discoverable. Determining the defendants did not take reasonable precautions by relying on an insufficient keyword search to prevent inadvertent disclosure, the court found the defendants waived their privilege. The court noted several measures could have helped prevent this waiver, including a clawback (or other non-waiver) agreement the defendants voluntarily abandoned and/or complying with the Sedona Conference Best Practices for use of search and information retrieval.

The Legal Technologies division of Kroll Ontrack provides corporations, law firms and government agencies with technology and services for large scale electronic and paper-based discovery, computer forensics, trial graphics and presentations as well as electronically stored information (ESI) and jury consulting. Helping customers quickly and cost-effectively find, review, manage, produce and present relevant evidence, Kroll Ontrack is recognized as the leading electronic discovery provider by Am Law Tech (2002, 2003, 2004, 2005, 2006, 2007 & 2008).

About Kroll Ontrack Inc.
Kroll Ontrack provides technology-driven services and software to help legal, corporate and government entities as well as consumers recover, search, analyze, produce and present data efficiently and cost-effectively. In addition to its award-winning suite of software, Kroll Ontrack provides data recovery, advanced search, paper and electronic discovery, computer forensics, ESI consulting, and trial consulting and presentation services. Kroll Ontrack is a technology services division of Kroll Inc., the global risk consulting company. For more information about Kroll Ontrack and its offerings please visit: www.krollontrack.com; www.ontrackdatarecovery.com; www.engeniumsearch.com; www.trialgraphix.com.