Ode to E-Discovery in 2009 (With Apologies to William Shakespeare)

We did it last year for two thousand and eight:
A review of the year’s e-discovery “greats.”
Here’s a more recent summary wholly in rhyme
To get you all up-to-date on two thousand and nine.

As a whole, common themes have begun to emerge,
Due to problems that have spurred many judges to urge
More cooperation and much earlier e-discovery plans,
And clarity on native-metadata versus PDF scans.
Numerous sanctions resulted, the courts raising their swords
Of adverse inference, default judgment and monetary awards.

First, Bellinger, D’Onofrio and Mirbeau told parties to abate
“Combative” e-discovery tactics and to instead cooperate.
Because courts everywhere have become increasingly bitter
About always being “cast in the role of babysitter.”

Discovery ought be “self-executing” without involving the court;
Counsel should “genuinely communicate” without judicial support.
Said Wells Fargo, most mid-case e-discovery frustrations
Could be avoided if raised “at the outset of litigation”
Instead of handling them with “one-paragraph boilerplate statements”
Then "waiting for the explosion later” to complain of misstatements.

In Collins & Aikman, the court found it unreasonable to refuse
To negotiate a search protocol or express any views.
And Capitol Records chastised defendant for leaving in the lurch
In not helping to develop reasonable protocol for an ESI search.

Too little, too late was the message in In re Fannie Mae,
When a party hired fifty lawyers, much to that party's dismay,
And spent nine percent of the annual budget of its own corporation
To prepare a production -- but to their desperation
They needed more time, which the court refused, as prior discussion
Would have simplified the task, or made clear its repercussions.

The debate between native and TIFF format has continued.
The law, while not consistent, has definitely grown and accrued.
In White, native format was ordered for a repeat production
Given inconsistent e-mail dates in the first, TIFF production.
In Cenveo the words "native format" were found to be obvious
And could not be read as meaning PDFs in a manner ambiguous

Bray & Gillespie ordered sanctions for switching to TIFF format from native
As it was "calculated to deceive" in a manner quite uncreative.
While in Covad the court found that taking electronic information
and "printing it, cutting it up, and telling one’s opponent to paste it back" to formation
When it could be "produced with a keystroke" in the original native
Amounted to complete, utter "madness in the world in which we live.”

But where ESI was presented in a jumbled PDF format production
Rahman did not require an additional native repeat production,
Since absent a specific format request, it was automatically presumed
To be in "reasonably usable form" that could easily be consumed.

Moving on, in a few courts, keyword searches were eschewed,
A judicial minority favors other ways of having e-data reviewed.
Asarco found keyword searches no longer the "favored methodology"
And found using only one search term an insult to technology.
Capitol Records then permitted "thorough" manual research
Of accessible sources, rather than a more key word-type search.

And in Starbucks a large company's use of a system outdated
Made the court give costs and fees to its opponent, who then waited
For production in a reasonably searchable medium it could manage,
Since not updating its systems should not work to the producer's advantage.

Attorney sanctions are growing more common in e-discovery law.
Bray & Gillespie ordered sanctions against attorneys who saw
Absolutely no need to investigate or track their clients’ vast ESI
Or determine if it stemmed from a native or TIFF-based supply.
The court also warned against inside counsel deciding to blindly rely
On outside counsel’s ESI efforts without at least questioning why.

The Chen court noted a senior lawyer's status as a novice in ESI law
And reduced her related legal fees by half for this flaw.
Gamby ordered default judgment where counsel was misinformed
About their client's documentation and computer system norms,
Finding “monumental incompetence, inexcusable neglect
Or purposeful evasion” far more than negligently incorrect.

Zurn decried a party for submitting an attorney's affidavit
On ESI burdens when it should have been the expert that braved it.
And Philip M. Adams decried relying on the judgment of employees
To determine what to preserve under document retention policies.

But when Pinstripe counsel drafted a much-needed litigation hold
And the client decided to ignore it in a move that was bold,
The court did not sanction the attorney at all, though the client
Was ordered to pay $2.5-K to a Bar Association for this defiance!

Additionally, using experienced paralegals for privilege review
Was found in Coburn not unreasonable for attorneys to do.
And in Heriot, review by a vendor before the production
Was found reasonable despite later potential privilege destruction.
Spieker even found a vendor's estimate way too expensive
Where the party's own employees could do an ESI search just as extensive.

Finally, most courts state that negligence is not enough all alone
To find adverse inference -- intentional spoliation must be shown.
Phillips found only negligence where emails were missing, due
To failing to issue a litigation hold for the client's review.
And in Control Group, employees’ lack of computer knowledge
Did not justify finding the amount of bad faith spoliation alleged.

While Southeastern and Phillips adhere to this “intent” definition,
Telequest noted a DNJ and Third Circuit split on this position.
Yet this split was irrelevant there, as the court did declare:
That either test led to spoliation for deleting evidence of data wipe software.
Adverse inference was ordered in Smith for wiping computer files, too
And for not producing server data after deciding it was duplicative, too.

In Innis Arden the sanctions amounted to adverse inference plus more:
Evidence derived from destroyed documents was to be completely ignored.
In Kipperman "blatant misrepresentations" on "the value of e-mail discovery"
To "influence the court" and increase the chance of recovery
Instead of seeking a protective order or similar decree,
Resulted in sanctions that included awards of both costs and of fees.

In Arista it was worse, as an adverse inference was combined
With an order that certain facts could not be contested or mined
Where a party failed to preserve relevant electronic information
And took steps to destroy it, to the court's great frustration.
Terminating sanctions were then ordered for tricks later deployed:
Wiping data, deleting e-mails and swapping computers like toys.

Other types of sanctions ran rampant through the judiciary as well.
Micron made patents unenforceable as sanctions for "shred days" from hell.
The court discussed the right test, holding that given prejudice and intent,
One should balance both with a clear/convincing standard to judge how it went.

Technical Sales ordered monetary sanctions when a party deleted
Seventy thousand files before a forensic exam could be completed.
And in Gronchocinski the court ordered sanctions and a judgment default
For cleaning disks to overwrite the ESI from its electronic vault.

And in Kvitka plaintiff's conduct resulted in prejudice so severe,
the court dismissed claims and used adverse inference for counterclaims here.
The plaintiff's conduct included dumping laptops and failing to comply
With preservation directions an attorney begged it to apply,
And also ignoring the advice from a computer technician
That e-mail might be retrievable if it stopped the demolition.

We hope you've enjoyed our second annual "Year in Review"
And that all of this knowledge is useful to you.
We await more developments in two thousand and ten,
And hope to relay them in rhyme when the year circles again.

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Comments (1) Read through and enter the discussion with the form at the end
Adam - January 12, 2010 1:13 PM

Bravo! Amazing work...

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