It’s the Archer and Not the Arrow

Introduction: e-Discovery Process

The title is cited from John Martin, a well-known ED consultant, arising from a discussion evaluating software vendors. In the case of e-Discovery vendors, a problem exists as so many promise “end to end” solutions. The archer analogy came up several months ago when a leading e-Discovery company was unable to produce to its own e-mails when it was sued by an ex-employee.

This is not about the details of who did what: you can find several excellent articles on the Web detailing the dispute. (One especially good summary from law.com is at http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202428316866is.)

It is the process I want to examine, because seeing a company handle its own litigation offers a clue as to how they handle yours.

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.

Several things are interesting here: First, 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. The duty to preserve begins when you know or should have known about a dispute that could lead to litigation.

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.”

To paraphrase the old Dick Gregory joke about “truth justice and the American way” that Neil Aresty and I were reminiscing about at LegalTech New York in January, 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 website that states their product is an “…enterprise-wide e-Discovery 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 website 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.

The reason I didn’t name the company is due to the problem existing beyond just 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.

By the way, 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 Supplementary Materials on Electronic Discovery: For Use in Civil Procedure Courses, by Judge Shira Scheindlin, Prof. Daniel Capra and the Sedona Conference from West, which is a Nutshell Series book condensing the material from their earlier casebook.