I firmly believe that if you don’t have a particular expertise needed to do your job correctly, that it is better to find someone that does, rather than try to learn on the fly. The most successful people that I know surround themselves with people that have expertise that they don’t possess. This is particularly true when discussing the legal profession; representing clients and working in a system that is based on a myriad of Federal, State and Local court rules. In particular, eDiscovery competence has almost become its own subset of the law, requiring expertise to make sure that the rules are followed correctly.
While competence in eDiscovery is not yet generally an enforceable standard (although California does have some new ethics rules on this topic), it is highly likely that it will be soon. And given rulings like the one discussed here, it may better to be in front of this issue rather than waiting for formal rules to be put into place.
In HM Electronics v. R.G. Technologies, a federal magistrate issued sanctions against multiple defendants and their counsel for pervasive discovery misconduct. The order included both monetary sanctions and a recommendation that issue sanctions and an adverse inference instruction be imposed because they “threatened to interfere with the rightful decision of the case”. Moving beyond the headline grabbing nature of the sanctions, there is a lot of language in the case that discusses the need for eDiscovery competency.
In particular, the court identified a number of breakdowns in the discovery process, some likely inadvertent and others likely intentional, that formed the basis of the sanctions. Taken as a whole, the breakdowns identify the need for counsel to have increased competency and more legal involvement in the discovery process. According to the judge, the breakdowns included the following:
- Counsel provided signed certification that his clients’ “discovery responses as true, to his knowledge or belief, without conducting a reasonable inquiry.” Contrary to the certification, the court found that many of the defendants’ responses were “false” and “misleading,” resulting in sanctions being issued under Federal Rule of Civil Procedure 26(g)(3).
- Additionally, counsel declined to “implement a litigation hold, or otherwise communicate to Defendants the importance of preserving relevant documents.” Counsel relied on its clients’ representations that they do not delete documents in the normal course of business, rather than issuing a litigation hold notice and having further discussions to make efforts to preserve potentially relevant information. The court imposed sanctions under FRCP 37 as a result of that failure and other misconduct by the defendants that resulted in key document destruction.
- The Court also concluded that counsel also “failed to produce over 375,000 pages of ESI until well after the close of discovery because they failed to perform quality control checks or to supervise their ESI vendor.”
- Perhaps most importantly, the court determined that counsel did not properly supervise outside lawyers and vendors who were tasked with handling the production of the ESI. The failure to directly supervise the search and review process, allowed the defendants to “withhold as privileged and without further review, more than 150,000 pages of ESI that were not privileged nor identified in a privilege log.”
There are two interesting exchanges between the parties’ counsel that highlight the nature and extent of the breakdowns and provide some insight as to the lawyer’s level of competency on this topic. During a February 28, 2014 court-ordered meet and confer, session the following took place:
- HERRERA: The next topic concerns RFT product durability claims and particularly its representations made in their structural failures report and communications regarding the same. And the point we made previously was that your client produced very little documents on this point and you agree to undertake an ESI search for further responsive documents. And we’ve seen nothing further.
- O’LEARY: All right. All e-mails responsive to that have been produced.
- HERRERA: Are you representing that your client did undertake—
- O’LEARY: I’m not representing anything. I’m saying that all e-mails have been produced.
- HERRERA: Well, I’m looking at our joint letter to Judge [McCurine] on January 22nd, that you agreed that your client will undertake a further ESI search for responsive documents on RFT server, including, but not limited to, e-mails received by former employee, Mark Sullivan. So my question is did your client do that?
- O’LEARY: Yes. And the e-mails regarding [the] IQ structural failures report have been produced. And I think we have said in previously meet and confers, Mark Sullivan’s work computer had very little on it.
- HERRERA: Is that the only place you searched is his work computer?
- O’LEARY: That’s not what I said. The e-mails with regard to the IQ structural failure report have been produced.
- HERRERA: Just so I’m clear, you produced some early on in the Bates label 172 to 262 range.
- O’LEARY: Yes.
- HERRERA: Have you produced anything beyond that?
- O’LEARY: No. All the e-mails with regard to RFT structural report were produced in the responsive documents.
- HERRERA: And a search was undertaken beyond Mark Sullivan’s information?
- O’LEARY: Yes.
Further in the exchange:
(ECF No. 268-27 (Exh. 17) at 14-15).
- HERRERA: We’re just really surprised that virtually–hardly any third-party communications have been produced.
- O’LEARY: Everything’s been produced.
- HERRERA: Did your client conduct an ESI search for communication[s]?
- O’LEARY: Everything has been produced.
- HERRERA: Well, that’s not really my question.
- O’LEARY: That’s my response, though. We produced everything when we did that by checking computers.
- HERRERA: I’d like to understand the methodology you did conduct.
- O’LEARY: I didn’t conduct the ESI search, so I don’t know the methodology. They were told to look for documents on their computer. They did so and we produced them. *** [T]hey obviously conducted the search and produced what they had.
Citing the new California State Bar eDiscovery ethics opinion (HERE), the court explained that counsel fell far short of its duty to supervise others who are involved in the document collection, review and production process, and that these activities are “non-delegable” and counsel must maintain overall responsibility for the work performed at all times. Signing a certification is more than a formality and indicates a level of responsibility that must be maintained.
This ruling demonstrates two important eDiscovery lessons for attorneys. It demonstrates why lawyers need to understand the steps needed to search, preserve and produce ESI and at the same time provides some instruction on how counsel should approach these issues. Specifically, when encountering preservation responsibilities, the ruling indicates that it is a lawyer’s responsibility to “become familiar with their clients’ information systems and digital data . . . to address [preservation issues].” Obtaining this knowledge will lead attorneys to be able to properly advise their clients on the duty and methods of preserving evidence. Further the case highlights the importance of instituting an effective and defensible workflow for the entire document review process. And finally, attorneys should use available technology and quality control procedures to make sure that the new standards of relevance and proportionality required under FRCP 26 are met. Using this case as a road map of procedures should be the goal of all attorneys involved in gathering eDiscovery material on behalf of clients.