Kroll Ontrack: BRIDGING THE GAP IN EDISCOVERY BEST PRACTICES

by ERIC ROBINSON THE EDISCOVERY BEST PRACTICE GAP Kroll Ontrack’s 2012 Year in Review suggested that the total number of cases addressing sanctions decreased while courts spent more time scrutinizing search protocols. Although sanctions were down, they certainly are not out in contemporary litigation, as counsel struggles to keep pace with rapidly emerging technologies, proliferating data volumes, and evolving ediscovery best practices. Unprepared litigators continue to fall victim to sanctions for ediscovery follies in large numbers. Spoliation case law often provides a wealth of substantive guidance and “what not to do” in ediscovery, however, most of the attention is focused on the high profile and/or buzz-worthy cases involving six-figure sanction totals and well known parties. Many “under-the-radar” cases suggest that ediscovery best practices are still evolving and are far from widespread within the contemporary legal community. This lack of standardized and/or accepted best practices identifies a significant knowledge gap between savvy litigants/ediscovery professionals and those who have yet to subject themselves to the unique challenges posed by the discovery of electronically stored information. Although one blog post won’t necessarily inoculate at-risk practitioners from sanctions for mishandling ESI, these lesser-known cases suggest that we should continue to spread the word that ediscovery duties extend throughout the case and well beyond the close of discovery. UNDERSTAND PRESERVATION AND COLLECTION OBLIGATIONS Understanding your preservation and collection obligations is critical. The Federal Rules as they stand aren’t tremendously clear on those duties, but efforts to amend the rules and clarify ediscovery obligations—or, at the very least, when those obligations are breached—are currently underway. Additionally, 2012 amendments to the ABA’s ethics rules and comments suggest that modern lawyers acclimate themselves in the evolution of the practice of law. Beyond rule changes, case law shows that courts are losing patience with attorneys – both outside and in-house counsel – that fail to meet fundamental discovery obligations. For example, in Distefano v. Law Offices of Barbara H. Katsos, PC, 2013 WL 1339548 (E.D.N.Y. March 29, 2013), the court held the defendant – an attorney – to a heightened preservation standard solely because of her profession. Specifically, the defendant replaced her computer system after her former client (the plaintiff) fired her but before they sued her for negligent representation. This prompted a motion for sanctions by the plaintiff. While the court has yet to rule on the relevancy of the records or whether they were destroyed with requisite culpability, it did note that “[it] cannot ignore the fact that [the defendant] is an attorney and should have been attuned to the prospect of litigation.” While the defendant in Distefano awaits her fate, defendants in the Northern District of Ohio were recently hit with massive sanctions. In E.E.O.C. v. Spitzer Management, Inc., 2013 WL 2250757 (N.D. Ohio May 22, 2013), the court learned, at trial, that the defendants’ lawyers had deleted fax headings from multiple documents and couldn’t immediately explain their actions when pressed. This prompted the court to order the defendants’ attorneys to produce originals of every document in the case, and many of the documents produced had been “requested but never turned over” during discovery. Ultimately, the court found the defendants’ conduct sanctionable to the tune of over $325,000—despite earlier arguments claiming that problems arose due to the complexity of the case and the number of custodians. IGNORANCE IS NOT AN EXCUSE If these cases are any indication, the message is clear, and as every first-year law student is taught, ignorance is never a defense and cannot be used as an excuse for otherwise sanctionable conduct. Attorneys of all fields must understand their duties with regard to ESI or face the wrath of unsympathetic courts.