You Can’t Claw Your Way Out Of This One: Transparency Required In E-Discovery Protocol

Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL, 2014 WL 2112927 (D. Nev. May 20, 2014)

This case is a declaratory relief action filed by Progressive in response to failed banks taken over by the FDIC as receiver. The FDIC–R filed a motion to compel plaintiff to finish production of documents responsive to discovery requests. At the time the motion was filed, the FDIC–R had not received most of Progressive’s production and had not received any ESI discovery.

The parties agreed to a Joint Proposed ESI protocol involving manual review of search terms. The judge entered a clawback order for said protocol, which gave the producing party the right to claw back any privileged documents. Plaintiff agreed to a keyword search of 1.8 million documents requested by defendants. Documents containing the mutually agreed-upon keywords were manually reviewed and marked as responsive or privileged.

After applying the agreed upon search terms, 565,000 documents remained from the original 1.8 million. Plaintiff manually reviewed these documents for one month before realizing that a minimum of six months would be required to complete the manual review. It was at this point that plaintiff decided to employ predictive coding to increase speed and accuracy.

FDIC-R objected to plaintiff’s supposed lack of cooperation related to the predictive coding method used. Plaintiff agreed that “applying predictive coding on top of search terms ‘is not always done.’”

The court voiced support for general use of predictive coding in e-discovery, and stated that it would have approved a “transparent mutually agreed upon” predictive coding protocol. The court also stated that plaintiff’s consultant was considered an e-discovery expert and should have voiced concerns related to plaintiff’s lack of transparency.

The court held that plaintiff could withhold any documents identified as privileged. While acknowledging that review cost-shifting would occur and FDIC-R would bear the burden, the court stated that defendants had the resources to finish the review quickly and allow discovery to proceed.

Plaintiff was required to produce all documents:

Under these circumstances, the court will require Progressive to produce the “hit” documents to the FDIC–R within fourteen days without further review. The court recognizes that requiring production of all of the “hit” documents will likely result in the production of documents not responsive to the FDIC–R’s discovery requests. However, the parties’ stipulated ESI protocol adopted this approach as one of two alternatives for Progressive’s production. Progressive elected and then abandoned the second option-to manually review and produce responsive ESI documents. It abandoned the option it selected unilaterally, without the FDICR’s acquiescence or the court’s approval and modification of the parties’ stipulated ESI protocol. Adopting the FDIC’s proposal of producing the “hit” documents will shift the cost of review to the FDIC–R. The FDIC–R has committed to devote the resources required to review the documents as expeditiously as possible and estimates the process could be completed in about a month by tapping into the resources of the numerous firms involved in these related actions who also have a substantially similar ESI protocol entered in their actions. It will allow discovery, which has been stalled for many months while this dispute is pending, to move forward, and reduce future disputes about Progressive’s ESI production.

The prevailing wisdom is that keyword search and manual review fail to provide complete and accurate results. The advanced technologies available today make these archaic methods cost-prohibitive and unnecessary. The court in the case at bar would likely have allowed predictive coding to proceed had plaintiff introduced it earlier in the discovery process.

Elijah’s state-of-the-art e-discovery technology and consulting services provide complete and timely document production and support. For more information about Elijah’s e-discovery solutions please visit http://www.elijaht.com/ediscovery, for general information visit www.elijaht.com, and to contact one of our ESI experts call 866-354-5240 or email info@elijaht.com.

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eDiscovery

Mega Metadata Manipulation Creates Costly Conclusion

T&E Investment Group LLC v. Faulkner, et al., No. 11-CV-0724-P (N.D.Tx. February 12, 2014)

In this Texas case, defendant Faulkner was charged with spoliation of evidence (metadata manipulation) after using a bulk file changer to disguise use of an unproduced computer.

Responding to plaintiffs T&E’s motion to compel, the court ordered that a “third party independent computer forensic expert jointly selected by the parties shall be permitted by defendants to have access to all of the computers used by the defendants during the year 2011, wherever located, for examination of their hard drives”

The agreed-upon expert, Fogarty, performed the initial investigation. The court summarized:

“Faulkner created a new profile on [computer] PCL-03, copied data to it, and used a bulk file changer to alter the data in an apparent “attempt to make it look like that was his computer that he used all the time.” Fogarty testified that he believed that someone used the bulk file changer to hide the existence of a computer that had not been produced in this case. He connected the missing computer to the use of the bulk file changer as follows: “And we clearly have a computer that was used throughout the entire year of 2011 up to and including the date of the Court order, and that computer has never been produced, and instead we got a computer that had falsified information on it pretending to be Mr.Faulkner’s computer.”

Of particular interest was an Alienware brand computer, which Fogarty testifed “was in the Faulkner’s home and we know it connected and made a secure connection to the Faulkner home computer or [the wife’s] computer in this case.” Fogarty also testified that e-mails were sent from the Alienware computer and that use of the bulk file changer showed intent to hide this computer and prevent its eventual production.

Defendant countered that he only used the bulk file changer to convert the files to read-only status as a protective measure against accidental deletion and that he had produced all computers in his custody.

The magistrate judge held that this testimony was false and plaintiffs sought sanctions. Specifically the judge found that:

“Faulkner’s use of a bulk file changer on PCL-03 and transferring large amounts of data from an external hard drive to that computer satisfied the elements of sanctionable spoliation under applicable law. More specifically … Defendant Faulkner manipulated data on PCL-03 to avoid producing the Alienware computer.”

The judge also held that defendant acted in bad faith and that the jury be “given a spoliation instruction that would entitle the jury to draw an adverse inference that a party who intentionally spoliated evidence did so in order to conceal evidence that was unfavorable to that party.”

The district court affirmed the magistrate’s order and imposition of a $27,500 monetary sanction. 

Elijah’s state-of-the-art e-discovery and computer forensic technology and consulting services provide complete and timely investigation, document production, and support. For more information about Elijah’s services, please visit http://www.elijaht.com, call 866-354-5240, or email info@elijaht.com.

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eDiscovery

Even Anti-Dentites Have Duty To Preserve

Painter v. Atwood, 912 F. Supp. 2d 962 – Dist. Court, D. Nevada 2012

In this case from March, plaintiff Painter accused defendants, including her former boss Dr. Atwood, a dentist, of sexual misconduct at the dental office where Painter and Atwood once worked together. Defendants stated that the conduct was consensual and filed a Motion for Spolitaion Sanctions related to deleted text messages and Facebook posts relevant to the litigation.

Defendants argued that the texts and posts in question contradicted plaintiff’s claims that she suffered emotional distress as a result of the alleged misconduct; plaintiff apparently praised her ex-boss and workplace in this deleted content. Defendants stated that they knew of the messages because the defendant dentist’s wife was friends with plaintiff on Facebook:

Concerning Facebook photographs, Plaintiff admitted that she posted to Facebook pictures taken while on a cruise with Dr. Atwood and his family. She testified, however, that she removed those photos sometime after she retained counsel because she randomly deletes albums from Facebook “on a constant basis.” Despite their deletion, Defendants produced copies of the Facebook photographs during Plaintiff’s deposition. In regard to the at-issue text messages, Plaintiff testified that she randomly deleted text messages while she was employed at Urgent Dental. Those text messages allegedly included some texts to a person named Ryan in which Plaintiff complained about Dr. Atwood. Plaintiff stated that she tried to get those text messages from her carrier, but was unable to do so. Additionally, Plaintiff stated that she replaced her phone in October 2011. 

Plaintiff’s attorney argued that the Facebook posts lacked relevance due to the fact that plaintiff had openly admitted she enjoyed her former workplace and ex-boss. Counsel also argued that Plaintiff quit her job solely based on the one incident of alleged sexual misconduct and that, as a “22-year-old girl”, plaintiff would not have known to preserve the posts in question.

Defendants sought sanctions for the deleted data. Regarding the Facebook posts, the court held that the posts were relevant and that sanctions were appropriate:

Although plaintiff’s counsel may have failed to advise plaintiff that she needed to save her Facebook posts and of the possible consequences for failing to do so, the deletion of a Facebook comment is an intentional act, not an accident, and the court cannot infer that plaintiff deleted Facebook comments which stated that she enjoyed working for defendant Dr. [Aaron] Atwood, after she contemplated the instant litigation, for an innocent reason.

Because Plaintiff presented copies of deleted Facebook photos, the court did not concern itself with spoliation claims. The text messages, however, were a different matter:

Plaintiff has admitted to randomly deleting text messages while employed at Urgent Dental. Specifically, there appear to be some text messages between Plaintiff and a person named Ryan in which she complained about Dr. Atwood. These text messages would be relevant to the case and no longer exist. Thus, the Court can conclude that they have been destroyed.

The judge found that, because the spoliation had not significantly delayed the proceedings, dismissal of the case would be too harsh a penalty, but held that awarding defendants an adverse interference instruction at trial was an appropriate sanction. 

Elijah’s state-of-the-art e-discovery technology and consulting services provide complete and timely document production and support. For more information about Elijah’s e-discovery solutions please visit http://www.elijaht.com/ediscovery, for general information visit www.elijaht.com, and to contact one of our ESI experts call 866-354-5240 or email info@elijaht.com. 

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eDiscovery

Not Just For Corporations: E-Discovery Production Woes Hit Home

Mancino v. Fingar Ins. Agency, 2014 N.Y. Misc. LEXIS 30 (N.Y. Misc. 2014)

In this action for breach of contract, negligent misrepresentation, and professional negligence, plaintiffs (insurance policy holders) sued defendant (insurance company) over insufficient home insurance policies procured by defendant after plaintiffs’ home was burglarized.

The policy included language stating that defendant would provide “full replacement value” of all items stolen from plaintiffs’ apartment. Plaintiffs filed suit over $114,000 they said defendant refused to pay in promised coverage.

After receiving a hard copy production from defendant during discovery, plaintiffs filed a motion to compel production of  “electronically stored information (“ESI”) in native form with TIFF images at Fingar’s expense in order to view document metadata.” Plaintiffs stated that acquiring metadata was necessary to determine the created dates and edit dates of certain insurance policy documents.

Defendant opposed and countered that metadata was inconsequential in the lawsuit. Defendant also claimed that TIFFing would be a “laborious task” and that the $3,500 native file format production cost should shift to plaintiffs.

The court cited CPLR § 3101(a), specifically that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” In the instant case, the court held that all but one of the documents in question were material and necessary.

The court rejected defendant’s claim that plaintiffs’ request “seeks information which is irrelevant or confidential, or is overbroad and unduly burdensome” and ruled in favor of plaintiffs and demanded defendant produce the requested documents in native form with TIFF images.

Moving to the issue of cost-shifting, the court cited seven factors:

1. [t]he extent to which the request is specifically tailored to discover relevant information; 2. [t]he availability of such information from other sources; 3. [t]he total cost of production, compared to the amount in controversy; 4. [t]he total cost of production, compared to the resources available to each party; 5. [t]he relative ability of each party to control costs and its incentive to do so; 6. [t]he importance of the issues at stake in the litigation; and 7. [t]he relative benefits to the parties of obtaining the information.”

Because no basis to shift was found and the producing party generally bears the costs of discovery, the court held that defendant should pay all document production-related costs. Elijah’s state-of-the-art e-discovery technology and consulting services provide complete and timely document production and support. For more information about Elijah’s e-discovery solutions please visit http://www.elijaht.com/ediscovery, for general information visit www.elijaht.com, and to contact one of our ESI experts call 866-354-5240 or email info@elijaht.com. 

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eDiscovery

Collaboration Required: E-Discovery Discovery About Discovery

Ruiz-Bueno, III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013)

In this wrongful death case, plaintiffs sought to compel defendants’ response to a set of interrogatories, asking: “(1) what efforts they made to comply with plaintiffs’ previous discovery requests, and (2) what procedures or methods were used to search for responsive electronically stored information, or ESI.” Defendants objected, arguing that “discovery about discovery” was not related to any claim or defense in the matter, and was therefore outside the scope of discovery allowed by Fed. R. Civ. P. 26(b)(1), which limits discovery to “any nonprivileged matter that is relevant to any party’s claim or defense”.

Defendants stated that their paltry ESI production was related to sporadic use of email by employees, and that each employee was asked to produce any emails that might be relevant to the matter. Anyone familiar with e-discovery and computer forensic best practices might take issue, as did the court, with this haphazard collection practice. No record was kept of how the 50 employees searched for emails, what keywords were used, nor which sender and recipient names were deemed relevant.

Plaintiffs grew worried about defendants’ ESI search procedures, and expressed concern regarding defendants’ reluctance to provide requested documents. Defendants countered that the requested information was irrelevant, and that all of plaintiffs’ concerns had been satisfactorily addressed. Plaintiffs then sought to compel production of information sought via prior interrogatories.

The court found that “discovery about discovery” is acceptable under certain circumstances, specifically in this case because defendants had not been “forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process” after plaintiffs complained about the small amount of ESI provided. The court went on to state:

In an ideal world (a situation which apparently does not exist here), these types of disputes would never be presented to the Court because counsel would have recognized, early in the case, the potential for disagreements about proper search protocols, and would have actively sought to avoid such disagreements through collaboration.  That concept appears in Fed.R.Civ.P. 26(f), which requires the parties to meet and confer early in the case about, among other matters, discovery, and, more specifically, to discuss ‘any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced….’  Rule 26(f)(3)(C).  That discussion can and should include cooperative planning, rather than unilateral decision-making, about matters such as ‘the sources of information to be preserved or searched; number and identities of custodians whose data will be preserved or collected …; topics for discovery; [and] search terms and methodologies to be employed to identify responsive data….’ Milberg LLP and Hausfeld LLP, ‘E–Discovery Today: The Fault Lies not in Our Rules …,’ 4 Fed. Cts. L.Rev. 131, 163 (2011).  When that occurs, each party is able to exert some measure of control over the e-discovery process, and, in turn, to have some measure of confidence in its results.”

Defendants then presented the argument that the requested level of cooperation would result in “an intrusion into privileged areas”. The court disagreed, holding that a discussion between parties regarding how to best search for relevant, requested ESI is neither burdensome nor a cause for concern about revealing confidential client materials. Turning to the importance of collaboration between the parties, the court stated:

What should have occurred here is that either as part of the Rule 26(f) planning process, or once it became apparent that a dispute was brewing over ESI, counsel should have engaged in a collaborative effort to solve the problem. That effort would require defendants’ counsel to state explicitly how the search was constructed or organized. Plaintiffs’ counsel would then have been given the chance to provide suggestions about making the search more thorough. That does not mean that all of plaintiffs’ suggestions would have to be followed, but it would change the nature of dispute from one about whether plaintiffs are entitled to find out how defendants went about retrieving information to one about whether those efforts were reasonable. That issue cannot be discussed intelligently either between counsel or by the Court in the absence of shared information about the nature of the search.”

While the court noted that “discovery about discovery” is not appropriate for every case, defendants were ordered to respond to plaintiffs’ interrogatories. The court shared plaintiffs’ concerns related to the volume of ESI produced, reluctance to produce requested information, and general contrarian behavior throughout the discovery process. The court threatened defendants with sanctions if they did not correct their curmudgeonly attitude. Elijah’s state-of-the-art e-discovery technology and consulting services provide complete and timely document production and support. For more information about Elijah’s e-discovery solutions please visit http://www.elijaht.com/ediscovery, for general information visit www.elijaht.com, and to contact one of our ESI experts call 866-354-5240 or email info@elijaht.com. 

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eDiscovery

Any Way You Slice It, Objections To E-Discovery Production Format Must Be Timely

RPM Pizza, LLC v. Argonaut Great Central Insurance Company, No. 10-684-BAJ-SCR (Dist. Court, M.D. Louisiana Nov. 15, 2013)

Plaintiff RPM Pizza (actually Domino’s Pizza in this matter) sued defendant Argonaut Insurance over an insurance claim payment.

Domino’s filed a motion to compel stating Argonaut’s prior electronic document production was incorrect and incomplete in several areas: no documents were produced for certain requests, production wasn’t complete for some requests, and most of the documents had already been produced.

Argonaut attempted to avoid the Noid by producing additional documents and a privilege log. Domino’s replied that the productions were in the wrong format (PDF instead of TIFF) and lacked metadata. Domino’s was also cheesed by the lack of detail in the privilege log that made it difficult to determine if said documents were actually privileged.

Regarding the formatting complaint, Argonaut replied that Domino’s waived its request by not objecting to the PDF production in a timely matter and that no direct need for included metadata was provided by Domino’s. In addition, Argonaut argued that the privilege log lacked detail due to unforeseen technical issues, lack of time to prepare an extension of time request after extensive document review, and an overly-broad discovery request from Domino’s. Argonaut then requested an extension of time to complete the log.

The court rejected all of Argonaut’s arguments like a pizza delivered in over 30 minutes. Instruction Number 5 clearly specified Domino’s ESI production requirements, which Argonaut did not address for six months, effectively waiving its right to object. The court stated:

Again, Argonaut’s arguments are unsupported and unpersuasive. Under Rule 34(b)(2)(E), Fed.R.Civ.P. a party may specify a form for production of ESI. Domino’s did that in its April 19 discovery requests by including Instruction Number 5. Argonaut waived any objection to this instruction by not asserting it timely — not making the objection until it provided thousands of document in a supplemental response on November 7. Argonaut’s attempt to rely on the general objection included in its May 19 discovery responses is unavailing. This general objection cannot reasonably be interpreted to encompass a specific objection to Domino’s Instruction Number 5.

 Regarding the privilege log, the court was unmoved by Argonaut’s arguments:

Argonaut’s attempted justification for its lengthy and deficient privilege log are vague, unsupported and unpersuasive. Argonaut’s primary argument is that unexpected time constraints and tight deadlines forced it to have to review thousands of documents with little notice in a short period of time.

Additionally, because Argonaut did not request an extension of time to produce the privilege log, nor did it adequately explain the technical issues that slowed-down production, the court held:

In these circumstances the court finds: (1) there is no basis to give Argonaut additional time to provide a more complete privilege log; and, (2) Argonaut has waived its claim of attorney client privilege and/or work product protection as to any documents listed as withheld on these grounds in its privilege logs.

The court granted Domino’s motion to compel and so ordered Argonaut to produce the documents in the proper, originally-requested format. Elijah’s state-of-the-art e-discovery technology and consulting services provide complete and timely document production and support. For more information about Elijah’s e-discovery solutions please visit http://www.elijaht.com/ediscovery, for general information visit www.elijaht.com, and to contact one of our ESI experts call 866-354-5240 or email info@elijaht.com. 

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eDiscovery

Alabama Court Demands Compliance With ESI Production Agreement

Northstar Marine, Inc. v. Huffman, CA 13-00037-WS-C (S.D. Ala. Aug. 27, 2013)

The United States District Court for the Southern District of Alabama held that plaintiff was required to comply with the parties’ Rule 26(f) agreement regarding eDiscovery and document production. Plaintiff stated it was “having difficulty locating an inexpensive provider of electronic search technology to assist with discovery”. Defendants’ motion to compel was granted, and the court held that plaintiff must adhere to the terms of the agreement.

The case stemmed from a cleanup contract related to the 2010 BP oil spill in the Gulf of Mexico. In its complaint, plaintiff demanded $1,000,000 in damages, and defendants filed a counterclaim. On June 10, 2013, the parties filed a supplement to their Rule 26(f) Report setting forth their agreements with regard to ESI. Among other things, the parties agreed that:

Both parties have or will immediately arrange to use computer-assisted search technology that permits efficient gathering of documents, de-duplication, maintaining the relationship between emails and attachments, full text Boolean searches of all documents in one pass, segregation or tagging of the search results, and export of all responsive files without cost to the other party. Both parties shall share with the other party the specific capabilities of their proposed computer-assisted search technology, and will endeavor to agree on the technology to be deployed by the other party.

In addition, the parties agreed to use certain search terms and agreed that “[a]ll documents in the search result sets shall be produced immediately to the other side in native format including all metadata.” The plan was adopted by the court in its Supplemental Rule 16(b) Scheduling Order.

On July 3, 2013 defendants stated they were ready to produce their collected ESI. Defendants emailed plaintiff twice asking for information about plaintiff’s collection method and for plaintiff’s collected ESI. Nearly one month later, plaintiff’s counsel admitted that plaintiff’s IT provider was unable to perform the tasks necessary to collect the information at issue and plaintiff was trying to locate outside providers of electronic search technology to assist with production. Defendants filed a motion to compel plaintiff’s document collection and production as specified in the supplemental agreement.

Plaintiff did not object to the discovery requests, but stated it was “having difficulty locating an inexpensive provider of electronic search technology to assist with plaintiff’s ESI discovery”. Plaintiff did not state when it would produce the requested ESI, but merely stated it would find a service provider “in short order”.

The court stated in no uncertain terms that plaintiff’s failure to comply with the very specific scheduling order was unacceptable. While the parties had agreed to collect and produce ESI immediately, plaintiff had not even begun collection due to failure to locate a cheap enough vendor (although plaintiff had received a vendor quote of $3,000 in a $1,000,000 case). The court also chastised plaintiff for its failure to exercise due diligence in adhering to the terms of the scheduling order and gave plaintiff two weeks to comply. 

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eDiscovery

Keyword Filtering Prior To Predictive Coding Deemed Reasonable

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013)

The United States District Court for the Northern District of Indiana recently recognized that an approach to eDiscovery that incorporates keyword searching as an inital culling tool and predictive coding as a secondary cull can be reasonable in even the largest of cases.  Biomet was being sued by hundreds of individual litigants and classes over its product.  Before the Judicial Panel on Multidistrict Litigation decided to centralize the litigation, Biomet took an anticipatory approach to discovery, over the objections of plaintiffs’ counsel who advised them to wait.  First, Biomet identified a universe of 19.5 million potentially relevant documents.  It then used keyword culling to trim this down to 3.9 million, with de-duplication further reducing the field to 2.5 million documents.  Statistical sampling of the excluded documents verified that less than 2.5% were potentially relevant.  Biomet then used predictive coding to rank the documents and contract attorneys to review for relevance, confidentially and privilege.  The cost of this was over $1,000,000.

The Plaintiffs were unsatisfied.  They argued that predictive coding should have been applied to the original universe of 19.5 million documents, and that using keyword searches was less effective and “tainted” the resulting cull.  They wanted the court to order Biomet to start from scratch, which would have cost Biomet at least as much, if not more, than it had already spent.

The Court declined to so order.  After noting that Plaintiffs’ arguments were supported by little more than a New York Law Journal article lacking in sources, the Court refused to address whether predictive coding is “better” than keyword searches.  The Court instead noted that the question was whether Biomet had done enough to meet its discovery obligations under Federal Rule of Civil Procedure 26(b) and 34(b)(2).  The Court found that it had.  Even given the large amount in controversy, the parties’ resources, the important issues at stake and the importance of discovery in resolving them, the Court found that the likely benefit from pursuing Plaintiffs’ proposed approach did not equal or outweigh the additional burden and expense on Biomet.

The Court was no doubt influenced by Biomet’s anticipatory approach and its own efforts to contain costs, which it viewed as reasonable.   Elijah has developed a predictive coding solution, ESPI, that marries the best of both worlds – allowing attorneys to leverage the use of keyword searches while obtaining the benefits of predictive analytics in substantially reducing the burdens associated with document intensive reviews.  For additional information about Elijah’s ESPI predictive coding solution, please visit http://www.elijaht.com/ediscovery/predictive-coding.

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Uncategorized

Outside Counsel Has Obligation To Investigate eDiscovery Production Gaps

The United States District Court for the Northern District of California recently granted a motion to compel the production of responsive documents and indicated that hiring an eDiscovery vendor may be ordered if production of said documents remains problematic.

Plaintiff, A shareholder in pharmaceutical company IKOR, Inc., sued the company and two of its officers alleging principally that IKOR made misrepresentations to induce plaintiff to invest. Defendants were asked to obey a prior court order to produce all responsive electronic documents, which they stated were still being located via an adequate search process. The three defendants provided 121 emails, of which 109 were communications with the plaintiff. The defendants also produced just 3 pages related to communications with a company run by three of IKOR’s principals.

Defendants acknowledged that prior productions were incomplete and lacked timeliness. Defendants also stated they were, at the time of oral argument, reviewing an additional 10,000 documents recovered during a later search of the same sources. The court acknowledged worries regarding the “inadequacy of defendants’ search” and stated:

Defense counsel has not been sufficiently proactive in ensuring that his clients are conducting thorough and appropriate document searches, especially in light of obvious gaps and underproduction. Under such circumstances, it is not enough for counsel to simply give instructions to his clients and count on them to fulfill their discovery obligations. The Federal Rules of Civil Procedure place an affirmative obligation on an attorney to ensure that a client’s search for responsive documents and information is complete. Therefore, where, as here, counsel notices obvious “gaps in the production” of documents by his clients, he is obligated to make a reasonable inquiry as to the thoroughness of that search.

 

The court ordered defendants to produce all remaining responsive documents and to supplement their responses to interrogatories. The court also stated:

Defendants are on notice that if there are continuing problems with their document productions, the court will order them to retain the services of an e-discovery vendor and order the parties to submit sworn, detailed declarations regarding their document preservation and collection efforts.

 

Elijah’s state-of-the-art eDiscovery technology and consulting services provide complete and timely document production and support. For more information about Elijah’s eDiscovery solutions please visithttp://www.elijaht.com/ediscovery, for general information visit www.elijaht.com, and to contact one of our ESI experts call 866-354-5240 or email info@elijaht.com.

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eDiscovery