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The eDiscovery Paradigm Shift

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Wednesday, March 19, 2008

Document Retention Policies and Practices

I recently found a checklist for Document Retention Policies and Practices written by Cecil A. Lynn III, Director of Industry Relations at LexisNexis Applied Discovery. And although this list is not comprehensive, it provides an extremely strong foundation up which to build your organizations list. Following is his list:

1. Maintain Document Retention Policies And Practices.
Every company should have a comprehensive, regularly audited document retention policy. The policy not only sets forth the procedures for the uniform and timely destruction of documents - both electronic and paper - but also establishes a consistent plan that is applied company-wide. A good document retention policy coupled with vigilant enforcement may be a company's best defense against claims of spoliation of evidence. The Federal Rules offer safe harbor for companies that lose data during the routine, good-faith operation of their electronic information systems. See FRCP 37(f). The "routine" requirement may be evidenced, in part, by a document retention policy. Counsel should review the company's retention program to ensure that it is current, applies to all employees in all locations, and is regularly monitored and enforced.

2. Understand The Corporation's Electronic Information Systems.
Case law underscores the need for outside counsel to become familiar with their client's electronic information and data retention architecture. See Phoenix Four Inc. v. Strategic Resources Corp., 2006 U.S. Dist. LEXIS 32211 at * 16-17 (S.D.N.Y. 2006) and Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004). The responsibility is even greater for in-house counsel who often provide a necessary link between the company's information technology (IT) department and outside counsel. Thus, corporate legal departments should develop a solid working relationship with the company's IT department and an understanding of the company's IT systems. Such an understanding is vital to the successful implementation of a document retention policy and will prove invaluable in evaluating preservation efforts in litigation.

3. Implement And Monitor Litigation Hold Procedures, When Appropriate.
The notion of document and information preservation is not something new to corporations. Several regulations impose preservation requirements on certain companies for the retention of documents and, in some cases, impose criminal penalties for their unlawful destruction. At common law, a company has a duty to preserve documents and electronic data when it "knows or reasonably should know" that information may be relevant to pending or anticipated litigation. Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). Once litigation is anticipated, a party must suspend its routine document retention/ destruction policy and put in place a litigation hold to preserve what it knows, or reasonably should know, is relevant to the action. See Hynix Semiconductor, Inc. v. Rambus, 2006 U.S. Dist. LEXIS 30690, *66-67 (N.D. Cal. 2006) and Samsung Elecs. Co. v. Rambus, 2006 U.S. Dist. LEXIS 50007, *96-99 (E.D. Va. 2006).

Corporate counsel must determine appropriate trigger points for "anticipation of litigation" and develop litigation hold procedures to implement upon such triggers. See Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 2007 U.S. Dist. LEXIS 15277 at *23-24 (D. Co. March 2, 2007); see also Heng Chan v. Triple 8 Palace Inc., 2005 U.S. Dist. LEXIS 16520 at *16 (S.D.N.Y. 2005) (counsel has an obligation to monitor compliance with the company's preservation obligations). Counsel should be proactive and ensure that litigation hold procedures are being complied with.

4. Communicate With Key Custodians And Key Data Stewards.
When practical, counsel should communicate face-to-face with key players to make sure that they understand the seriousness of the preservation obligation and the consequences of destruction of potentially relevant evidence. Counsel should inquire about the potential witnesses's personal practices for document management and retention and determine whether it is consistent with company policy and determine whether the individual keeps potentially discoverable material on sources that are not online with the company's computer systems (e.g., home computer, PDA, pocket drive, etc.) Most importantly, counsel must explain the custodian's ongoing preservation obligation. A written litigation hold notice should be sent to these individuals that reminds them of their responsibilities under the company's document retention policy and specifically cautions them to refrain from altering, modifying or deleting potentially relevant information.

Counsel should also communicate with the "data stewards" - the IT staff who manage the resources on which key players create/store corporate data. Discuss whether it is appropriate or necessary to take a mirror image of the relevant storage devices and make sure that any auto-delete functionality is disabled. Counsel and IT should make sure that relevant active files are not deleted, converted to backup tape, or otherwise downgraded. Metadata should be preserved, even if the determination has not yet been made to produce it.

5. Establish An E-Discovery Committee.
In-house counsel should consider putting together a team with representatives from the IT department, records management, corporate compliance and the legal department to develop and implement an action plan for litigation involving electronic discovery. This team will be responsible for keeping the legal department apprised of procedural or staff changes that impact document retention policies, including any litigation holds in place. The IT representatives would advise of the latest technologies acquired by the company that impact data storage or relate to the company's document retention program.

Counsel may also want to interview and train potential Rule 30(b)(6) witnesses, ideally members of the committee who have knowledge and can effectively articulate their expertise with all aspects of the company's computer processing and storage capabilities.

6. Implement A Plan To Maintain Data Formats And Map Data Sources.
Electronic information can be maintained in a variety of formats and on multiple types of media. Corporate counsel should work closely with the IT department to determine how information is preserved and whether data is converted or degraded for storage or archival purposes. Counsel should also be aware of the range of potential sources for relevant information and collaborate with IT to develop a "data map" which profiles the company's sources and locations of electronically stored information. A data map can set out in detail the company's different active data creation and storage systems and give valuable insight into the potential cost - in terms of time and money - of preserving and collecting the information. Data mapping profiles may include details about:

  • the applications and file types in use at the company, including details on proprietary or unique applications and integrated databases - particularly business-critical applications or those which are likely targets of discovery;
  • the range of electronic communications, such as: email, instant messaging, voicemail, and Voice Over Internet Protocol applications, and including details about server organization, physical locations, and backup protocols for each;
  • network storage and file servers, including information about server organization, physical location, and backup protocols;
  • workstation distributions and configurations;
  • remote user set-up (i.e., are employees able to VPN in from their home computers?);
  • distribution and use of mobile devices, including laptops and PDAs, with specific attention to whether data on such devices is captured or "synched" in any formal fashion.

7. Establish A Collection Methodology So That Responsive Data Can Be Securely Stored Prior To Processing, Review And Production.
There are several collection methodologies and technologies that can realize significant cost savings for corporations. In-house counsel should explore these techniques to determine if they are right for the company. For example, corporations can establish a "black box" service on which duplicate copies of relevant emails are automatically stored. The black box reduces the risk of deletion. If the company is involved in multiple pieces of litigation where the same documents are at issue, counsel may want to consider building a central data repository. Document repositories can save the corporation time and money as the company may need to review the documents only once and information about the documents such as relevance, privilege, Bates stamps and redactions can all be retained and reused in subsequent litigation.

8. Determine What Information Is Not Reasonably Accessible Due To Undue Burden Or Cost.
While the general rule is that parties may obtain discovery on any matter relevant to the claims or defenses involved in the case, see FRCP 26(b)(1), the rules offer limitations where data sources are not reasonably accessible due to undue cost or burden. See FRCP 26(b)(2)(B). However, even if the data sources are deemed not reasonably accessible, the court may still order production and set conditions on the requested production, including cost shifting. See FRCP 26(b)(2).

A data map will assist counsel in the determination of whether data sources are arguably not reasonably accessible. Counsel should also discuss the potential cost and burden with their IT department and a data collection specialist to determine whether selective restoration or sampling of inaccessible data is appropriate. For some data, restoration may still be cost prohibitive given the amount at stake in the litigation.

9. Take Proactive Steps To Prevent The Potential Inadvertent Production Of Privileged Documents.
The sheer volume of electronically stored information that may be produced in litigation increases the risk of inadvertent production of privileged or protected documents. However, there are steps that corporate departments can take prior to litigation to reduce the risk of inadvertent production. If practical, privileged documents can be segregated, coded, or tagged in the ordinary course of business thereby reducing the risk that they will be commingled with non-privileged data. Boilerplate tags and footers that read "attorney-client privilege" may be insufficient to identify a protected document, particularly if the tag is automatically and indiscriminately applied to every email generated from a particular user.

10. Communicate Regularly With Outside Counsel.
In-house counsel must fully understand the company's preservation, collection and production procedures relating to electronically stored information and be able to discuss them with their outside counsel. This is particularly important in the beginning stages of litigation when the parties meet and confer under Rule 26(f). In-house counsel may want to be present during this conference to assist outside counsel. Of course, the extent of counsel's involvement may vary depending upon the size and complexity of the case, the amount of the controversy, the location of the litigation and the volume of potentially relevant data.

As corporate counsel get more involved in the corporation's litigation matters and document retention policies and practices, they will feel more confident and comfortable with the electronic discovery-related changes to the Federal Rules of Civil Procedure. Education and communication are two keys to litigation preparedness. Both will make certain that the legal department can make reasonable and defensible choices regarding the collection, preservation and production of documents in litigation.

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Thursday, March 6, 2008

Is Zublake Relevant in 2008?

With the maturation of records management standards, the evolution of Evidence Lifecycle Management (ELM) and the decrease in the cost of online storage technology, is the relevance of some of the Zubulake rulings ready to be challenged? Or, is it still the "Gold Standard" for eDiscovery? What do you think?

Zubulake Overview
During 2003 and 2004, United States District Court Judge Shira A. Scheindlin issued five groundbreaking opinions in the case of Zubulake v UBS Warburg that are considered the first definitive opinions on a wide range of electronic discovery issues. It was, using the words from my Blog, a paradigm shift in eDiscovery.

The eDiscovery issues that were defined by these decision include; (1) the scope of a party's duty to preserve electronic evidence during the course of litigation; (2) an attorney's duty to monitor their clients' compliance with electronic data preservation and production; (3) data sampling; (4) the ability for the disclosing party to shift the costs of restoring “inaccessible” back up tapes to the requesting party; and, (5) the imposition of sanctions for the spoliation (or destruction) of electronically stored information/evidence.

Zubulake I, II, III
Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003). In a gender discrimination suit against her former employer, the plaintiff requested that the defendant produce "[a]ll documents concerning any communication by or between UBS employees concerning the plaintiff." The defendant produced 350 pages of documents, including approximately 100 pages of email. The plaintiff knew that additional responsive email existed that the defendant had failed to produce because she, in fact, had produced approximately 450 pages of email correspondence. She requested that the defendants produce the email from archival media. Claiming undue burden and expense, the defendant urged the court to shift the cost of production to the plaintiff, citing the Rowe decision. Stating that a court should consider cost-shifting only when electronic data is relatively inaccessible (such as in this case), the court considered the Rowe 8-factor cost shifting test. The court noted that the application of the Rowe factors may result in disproportionate cost shifting away from large defendants, and the court modified the test to 7 factors: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production compared to the amount in controversy; (4) the total cost of production compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issue at stake in the litigation and; (7) the relative benefits to the parties of obtaining the information. The court ordered the defendant to produce, at its own expense, all responsive email existing on its optical disks, active servers, and five backup tapes as selected by the plaintiff. The court determined that only after the contents of the backup tapes are reviewed and the defendant's costs are quantified, the court will conduct the appropriate cost-shifting analysis. See also Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003).

Zublake IV
Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In the restoration effort that occurred according to previous e-discovery decisions in the matter, the parties discovered that certain backup tapes were missing and that emails had been deleted. The plaintiff moved for evidentiary and monetary sanctions against the defendant for its failure to preserve the missing tapes and emails. The court found that the defendant had a duty to preserve the missing evidence, since it should have known that the emails may be relevant to future litigation. Although the plaintiff did not file her charges until August 2001, by April of that year, "almost everyone associated with Zubulake recognized the possibility that she might sue," the court wrote. The court also found that the defendant failed to comply with its own retention policy, which would have preserved the missing evidence. The judge found that although the defendant had a duty to preserve all of the backup tapes at issue, and destroyed them with the requisite culpability, the plaintiff could not demonstrate that the lost evidence would have supported her claims. Therefore, it was inappropriate to give an adverse inference instruction to the jury. Even though an adverse inference instruction was not warranted, the court ordered the defendant to bear the plaintiff's costs for re-deposing certain witnesses for the limited purpose of inquiring into the destruction of electronic evidence and any newly discovered emails.

Zubulake V
Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004). During an ongoing discovery dispute in an employment discrimination case, the employee moved for sanctions against the employer for failing to produce backup tapes containing relevant emails and for failing to produce other relevant documents in a timely manner. See Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In this latest motion, the employee contended that the employer, who recovered some of the deleted relevant emails, prejudiced her case by producing recovered emails long after the initial document requests. Furthermore, some of the emails were never produced, including an email that pertained to a relevant conversation about the employee. As such, the employee requested sanctions in the form of an adverse inference jury instruction. Determining that the employer had wilfully deleted relevant emails despite contrary court orders, the court granted the motion for sanctions and also ordered the employer to pay costs. The court further noted that defense counsel was partly to blame for the document destruction because it had failed in its duty to locate relevant information, to preserve that information, and to timely produce that information. In addressing the role of counsel in litigation generally, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched." Specifically, the court concluded that attorneys are obligated to ensure all relevant documents are discovered, retained, and produced. Additionally, the court declared that litigators must guarantee that identified relevant documents are preserved by placing a "litigation hold" on the documents, communicating the need to preserve them, and arranging for safeguarding of relevant archival media.

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Friday, February 29, 2008

Cell Phones,Text Messages and Smoking Guns

It doesn't take reviewing the results of one of the recent national studies on cell phone usage to realize that that most Americans and most adults throughout the industrialized nations of the world now have cell phones. As such, the collecting the ESI on cell phones should be at the top of the checklist for almost any litigation in 2008. However, given the fact that I spend most of my waking hours discussing eDiscovery and ESI collection and computer forensics, I am still surprised that the potential smoking gun data on cells phone is either over looked or under estimated.

In a recent blog posting titled "Don't Forget the Phone Messages"on ediscoveryinfo, Brett Burney points out several recent high profile cases in which the ESI on cell phones were the basis for the case (i.e. the smoking gun).

Does anyone else have any other examples of either cell phones providing the "smoking gun" evidence or cell phones being overlooked to the determent of the case. Further, does any have any interesting computer forensic case studies in regards to retrieving ESI from cell phones.

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Saturday, November 3, 2007

E-Discovery Sanctions: The Zubulake Wake-Up Call

Given the vast amount of electronic information retained by most companies, the complex task of managing discoverable ESI and the risk of severe sanctions for e-discovery missteps are a major concern and a potential liability for all companies. As such, it is imparative that all parties involved in the eDsicovery process understand the current trends and pertinent case law in eDiscovery sanctions.

In an article originally published in K&L Gates Newsstand, April 2007, Thomas J. Smith and Michael J. Crossey, Jr. do an outstanding job of summarizing and addressing the issues and the current applicable case law.


It is now black-letter law that electronically stored information ("ESI" for short) is discoverable if relevant or likely to lead to relevant evidence. Indeed, the revisions to the Federal Rules of Civil Procedure ("FRCP") that went into effect on December 1, 2006 addressing the discovery of ESI confirm that the 21st Century is witnessing the transformation of traditional trial practice to accommodate ESI in all phases of litigation, from initial discovery and production through trial. Given the vast amount of electronic information retained by most companies, the complex task of preserving, retrieving, and producing discoverable ESI and the prospect of extremely harsh sanctions for discovery missteps, the discovery of electronically stored information, or "e-discovery," has become a major concern and potential liability for all companies.

The genesis of e-discovery sanctions stems from the historic imposition of sanctions for "spoliation"—the destruction or alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. In federal court, a party that contravenes discovery rules or orders has always been subject to sanctions pursuant to FRCP 37. Additionally, all courts have the inherent power to police litigant misconduct and impose sanctions upon those who abuse the discovery process. The underlying basis for both Rule 37 sanctions and sanctions pursuant to a court’s inherent powers is to (1) penalize the culpable parties; (2) deter others from engaging in similar conduct; (3) redress the prejudice suffered by the innocent party; and (4) compel required disclosures.

To this end, courts have broad discretion regarding the type and degree of sanctions they can impose. Depending on the egregiousness of the e-discovery missteps, companies that have engaged in intentional, negligent, or even innocent, spoliation of electronic evidence have been assessed monetary sanctions (including both civil penalties and costs and attorneys’ fees associated with discovery), preclusion sanctions (i.e., precluding the offer or other use of certain evidence), adverse inferences (i.e., directing a jury to assume missing ESI is adverse to the spoliator), so-called "rummaging" (i.e., giving the discovering party hands-on access to an adversary’s computer system), revocation of pro hac vice admission of counsel, and even default judgments.

The Zubulake Wake-Up Call

A seminal series of e-discovery opinions were issued in the case of Zubulake v. UBS Warburg.1 Filed in 2002 in the Southern District of New York, Zubulake involved an employment discrimination dispute in which the plaintiff, a former Wall Street executive, requested ESI during the normal course of discovery.

In reaffirming the well-established principle that the duty to preserve and produce potentially relevant evidence extends to ESI, the Court found that the defendant’s failure to preserve and produce electronic evidence (including not preserving allegedly relevant e-mails and backup tapes), warranted severe sanctions. These sanctions included both monetary penalties and an adverse inference instruction to the jury. The jury ultimately returned a verdict for $29.3 million—including $20.2 million in punitive damages!

The Sanctions Trend

The Zubulake sanctions contributed to a focus on e-discovery and appropriate records management, but its progeny have perpetuated and expanded the field, and the imposition of sanctions for e-discovery failures is a continuing trend. As the following cases illustrate, Courts have issued a number of notable opinions with regard to discovery of ESI, and have imposed severe sanctions on litigants found to have fallen short in their duty to preserve and produce potentially relevant ESI:

Substantial Monetary Sanctions and Default Judgment for Failure to Produce Backup Tapes:
In 2005, a Florida jury awarded financier Ronald Perelman $1.45 billion in damages after the trial judge issued a default judgment against Morgan Stanley as a sanction for various alleged e-discovery missteps.2 The trial judge found that Morgan Stanley initially certified that all relevant electronic records had been produced, but then repeatedly uncovered new backup tapes months after the discovery deadline had passed. The trial judge ruled that Morgan Stanley had deliberately failed to comply with discovery and instructed the jury to assume that Morgan Stanley had helped to defraud Mr. Perelman. As a result of this instruction, Mr. Perelman had to prove only that he relied on Morgan Stanley’s representations to his financial detriment.

While the judgment, including the award of punitive damages, was reversed on grounds unrelated to the e-discovery issues (which issues were left untouched by the appellate court), the trial court’s rulings and the jury’s findings are a cautionary tale regarding the potential impact of e-discovery miscues.

Adverse Inference and Monetary Sanctions Imposed for Failure to Halt E-Mail Recycling Program: In 2005, a Minnesota judge imposed monetary sanctions and granted an adverse inference instruction against a securities company after finding that the company failed to preserve and produce potentially relevant ESI. While the court could not find that that spoliation of paper documents occurred, the judge determined that the defendants’ destruction of hard drives, allegedly pursuant to a business closure, destruction of telephone recordings pursuant to defendants’ standard business practices, and defendants’ failure to retain e-mail messages by either placing a litigation hold on e-mail boxes or preserving backup tapes with copies of potentially relevant e-mails prejudiced plaintiffs so as to merit the sanctions imposed.

E-Discovery Abuse Warranted Adverse Inference Instruction: In 2006, a federal district judge in Minnesota adopted a magistrate judge’s recommended evidentiary sanctions against an alleged patent infringer.3 These sanctions included an adverse inference instruction, an order barring the alleged infringer’s attorney from attending the deposition of any defense witness or any third party, an order granting the plaintiff additional depositions and other discovery, and an award of reasonable fees and costs to the plaintiff associated with its sanctions motion. The court also affirmed the magistrate’s warning that further sanctions, including default judgment, could result if the defendant either failed to abide by the court’s rulings and the FRCP or engaged in further discovery abuse.

Adverse Inference Instruction, Preclusion of Evidence Order, and Award of Attorneys’ Fees Imposed for a Small Number of E-Mails Lost Pursuant to "Long-Standing" Document Policy: In 2006, the Southern District of California imposed sanctions against a defendant, an investor in Napster, Inc., in a copyright infringement action regarding musical compositions.4 After learning that the defendant’s employees routinely deleted e-mails pursuant to its "long-standing" document policy, without regard to whether the deleted e-mails were relevant to the litigation, the court issued a preclusion of evidence order, an adverse inference instruction, and an award of attorneys’ fees. The court determined these sanctions to be the appropriate remedy despite the fact that the defendant’s conduct did not constitute a pattern of deliberately deceptive litigation practices, and notwithstanding evidence that the number of e-mails actually lost was small.

Variety of Severe Sanctions Issued for Failing to Search E-Mails and Permanently Losing Others Pursuant to Standard Practices: In 2006, the New Jersey Federal Court imposed significant sanctions upon an ERISA class action defendant for repeated e-discovery abuses, including failing to search e-mails and permanently losing others due to standard e-mail retention practices.5 While reserving decision as to the propriety of a default judgment until certain class action issues had been resolved, the court, notwithstanding its proclaimed reluctance to sanction parties, issued a variety of sanctions, including: (1) deeming certain facts admitted by defendant for all purposes; (2) precluding evidence that was not produced by the defendant in discovery; (3) striking various privilege assertions by the defendant; (4) directing the payment of substantial costs and attorneys’ fees related to defendant’s misconduct; (5) imposing fines in an amount to be determined after the court considered defendant’s financial condition; and (6) appointing a discovery monitor at the defendant’s expense to review defendant’s compliance with the court’s discovery orders.

Inadequate Record Hold Notices Resulted in Adverse Inference Instruction and Award of Attorneys’ Fees: Ushering in 2007, the Southern District of New York granted plaintiff’s motion for sanctions in the form of an adverse inference instruction and awarded plaintiff its costs and attorneys’ fees incurred in connection with its sanctions motion, as well as additional discovery costs where the defendant was only able to produce e-mails for 13 out of the 57 current and former employees who were identified as "key players" in the suit.6 While the defendant sent out document hold notices early in the case, it failed to issue a reminder notice after going through a corporate reorganization that resulted in the creation of two separate entities, and, moreover, the initial hold memos that it distributed were ignored. The court explained that, in the Second Circuit, the "‘culpable state of mind’ requirement [for the granting of an adverse inference instruction] is satisfied . . . by a showing of ordinary negligence."7

Court Orders Default Judgment for Failure to Produce "Smoking Gun" E-Mails:
In a 2007 suit for specific performance of a contract for the purchase of a radio station, the Southern District of Florida awarded a default judgment and attorneys’ fees and costs to plaintiff based upon defendants’ discovery misconduct.8 The court found that the defendant, among other abuses, failed to produce key "smoking gun" e-mails during discovery. The e-mails, later obtained from a third party, directly contradicted testimony by defendant that it was in compliance with the purchase agreement’s exclusive dealing provision. Despite defendant’s assertion that the e-mails were purged "as a part of ongoing business practice . . . due to the limited amount of storage space," the court found the entry of a default judgment to be warranted.


While the costs of complying with e-discovery can be expensive, the consequences of noncompliance can be far worse. As the above cases illustrate, courts across the country are increasingly willing to take a hard line with corporate litigants who mishandle e-discovery. Litigants can now expect some courts to review their e-discovery procedures in great detail before deciding whether their actions were reasonable. Clients and counsel that do not focus sufficient attention on ensuring the preservation and production of relevant ESI face the risk that the destruction of potentially relevant electronic evidence, regardless of whether the destruction was unintentional, can lead to severe sanctions and even tip the balance in determining litigation outcomes. For a more detailed evaluation and analysis of how your company can act now to implement best practices with regard to records management, and how you can reduce e-discovery risks and costs in future or currently pending litigation, please be in touch with one of your K&L Gates contacts or any of the other lawyers listed above.

Editor’s note: This article was originally published in K&L Gates Newsstand, April 2007, and can be found on the publication's Web site. Copyright ©1996-2007 Kirkpatrick & Lockhart Preston Gates Ellis LLP. All rights reserved. Reprinted by permission.

1 229 F.R.D. 422 (S.D.N.Y. 2004) ("Zubulake V"). See K&L Alert "Zubulake Jury Returns E-Discovery ‘Wake-Up Call’" (April 2005).

2 Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No. CA03-5045 (15th Jud. Cir., Palm Beach Cty., Fla.), rev’d on other grounds, No. 4D05-2606 (Fla. Dist. Ct. App. Mar. 21, 2007).

3 3M Innovative Props. Co. v. Tomar Elecs., 2006 WL 2670038 (D. Minn. Sept. 18, 2006).

4 In re Napster, Inc. Copyright Litig., 2006 WL 3050864 (N.D. Cal. Oct. 25, 2006).

5 Wachtel v. Health Net, Inc., 2006 WL 2538935 (D.N.J. Dec. 6, 2006).

6 In re NTL, Inc. Sec. Litig., 2007 WL 241344 (S.D.N.Y. Jan. 30, 2007).

7 NTL, 2007 WL 241344 at *19 (emphasis added).

8 Qantum Communications Corp. v. Star Broad., Inc., 2007 WL 445307 (S.D. Fla. Feb. 9, 2007).

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