It’s The Archer, Not The Arrow

That quote is from John Martin , a well known ED consultant, as part of an ongoing thread this past week on the LitSupport listserv. The litigation support community has been in an uproar discussing the seeming inability of a leading e-discovery company to produce it’s own e-mails. Now I don’t want to get into the details of who did what: you can find an excellent article on the dispute on the EDD Update  site. The process is what I want to examine. In this case an ex-employee sued a company for wrongful termination and during discovery the company failed to produce some emails that the ex-employee obtained from another ex-employee. The plaintiff alleged the files were on company hard drives and the company alleged that they were on a backup tape that had become corrupt before the claim was filed for arbitration.

Now several things are interesting to me here. First is that the company seems to misunderstand when their duty to preserve potential evidence springs into existence, asserting that it is only after the filing of a specific claim or action when in this case it appears that there was an internal dispute going on well before that. Second, in an interview company executives say the company was not “legally required” to search its backup tapes, given the expense of reading them. Third, in an interview the CEO of the company says he didn’t know in detail why they didn’t find many of the files but blames a lost laptop for part of the failure. Fourth, in a press release the company states that they do “… not develop or sell solutions that target back-up tapes. We sell solutions that enable parties to conduct efficient and targeted discovery.”

Mmmmm, ok well first to paraphrase the old Dick Gregory joke about “truth justice and the American way” that Neil Aresty and I were reminiscing about just a few weeks ago at LegalTech New York, I thought that backup tapes of archived email were part of “efficient and targeted discovery”. Apparently this company has carved out an entire new exception to the process which is even more odd in light of the blurb on their web site that states their product is an ” … enterprise-wide eDiscovery solution that operates from a central location to automatically perform search and collection of electronically stored information (ESI) from unstructured and semi-structured data stores, such as: workstations, laptops, servers, removable storage devices, archiving and content management solutions.”

No Monday Night Football type disclaimer that says “backup tapes absolutely prohibited.” To the contrary, their web site lists numerous white papers and webinars discussing litigation hold procedures, the fundamentals of the e-discovery process and the importance of a defensible e-discovery preservation and collection process. Yet despite all this, they seem to have lost track of the fact that under the federal rules, not to mention the latest ruling from J.Scheindlin (Securities and Exchange Commission v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y., Jan. 13, 2009) , your obligation is to make these arguments at a meeting with co-counsel as early as possible in the case  and not in newspaper interviews, press releases and blog postings after you lose an arbitration ruling.

Now the reason I didn’t name the company here is that I don’t think the problem is limited to this company. It is exactly the issue that drove Judge Facciola to make his remarks at LegalTech New York about “stubborn attorneys” not learning technology. It is what drove the arbitrator in this case to state “I want this game-playing stopped,” and ultimately rule in favor of the ex-employee. It is was prompted the start of several educational and certification efforts including last weeks Georgetown Law Center’s E-Discovery Training Academy and John Martins ESI Standards Group.

Judges are losing patience with attorneys who don’t understand the technology and , at the same time, don’t understand their obligations under the FRCP.  As Judge Grimm stated in the Mancia decision, lawyers need to pay more attention to FRCP 1 and FRCP 26(g) before they begin to use e-discovery as a weapon. (Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008).)

As John Martin said, it’s not about the technology folks it’s about the process.

BTW, speaking of educational efforts, two great resources you should consider are the new book by Ralph Losey, Introduction to E-Discovery: New Cases, Ideas, and Techniques from the ABA.  And don’t forget that the ABA TechShow is coming up April 2-4 in Chicago. Multiple tracks including one on Trial Skills chaired by Judge Herbert Dixon of the Superior Court of the District of Columbia and one on E-Discovery co-chaired by Judge Dixon and Browning Marean and featuring the the ubiquitous, effervescent and indefatigable Craig Ball.

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