What happens when things go wrong in ediscovery?
This is certainly an interesting piece by Jon Del Barrio and John Davis from Crowell & Moring looking at a January 2021 case in the US: DR Distributors, LLC v. 21 Century Smoking, Inc. (N.D. Ill. No. 12 CV 50324)
Now I don’t want to simply repeat what this article covers, but I do want to emphasise a few key points that I took away from this:
- The need to take discovery seriously: “The court surveyed the long timeline of the case and the defendants’ repeated missteps, evasions and failures despite the court’s early and repeated emphasis on doing e-discovery right.”
- The potential penalties that can be at stake if you get it wrong: “The court granted the sanctions motion under Rule 26(g) as well as Rule 37(a)-(c). First, the court issued evidentiary sanctions… Second, the court ordered defendants and former counsel each to pay half of plaintiff’s relevant attorney’s fees and costs, which plaintiff had already indicated was over $800,000… Third, certain defence attorneys were required to complete at least eight hours of CLE on e-discovery and certify that they read the 256-page order.”
I hope this acts as a simple reminder to those in the industry regarding what can happen when eDiscovery goes astray. And saying that, it makes me think of how we get involved in cases too when they need a bit of a turn around. Here is one such example.
A&M was instructed by a London law firm to assist them with an ongoing matter in which they had discontinued working with a previous provider. Due to historic work on the original claim, A&M inherited an eDisclosure database. Neither A&M nor the law firm were provided with any documentation around processes that had been used or workflows that were previously implemented.
The team at A&M were requested to triage the inherited case and report upon the previous providers processes and work product. Various issues had been identified and A&M were instructed to investigate the inherited case and remediate any issues.
The A&M team initially performed a data ingestion reconciliation exercise to identify gaps in missing or failed to process data. Following this, any gaps were patched in using original source data that had been provided. Further to this, A&M performed a full review case audit and identified other areas of concern around the incorrect implementation of workflows, specifically as they related to the use of Analytical features.
In short, these issues would have resulted in an incomplete review of keyword responsive documents, yet the work that the A&M team performed allowed the legal team to have assurances around their disclosure exercise whilst also complying with all mandated deadlines.
If you want to hear more on this then please do get in touch.
DR Distributors is a long running trademark infringement case involving the likelihood of confusion between similar marks used for branded electronic cigarettes. One discernable theme is how defense counsel at many points should have realized the likelihood that they would be confused by their ESI obligations, and associated themselves with someone knowledgeable and interested in figuring that out. Their decision instead to simply push through would be their undoing.