Judges are increasingly demanding diligence from plaintiffs; defendants and their counsel when it comes to electronic discovery, issuing sanctions to those who they feel have been negligent. In fact, there have been so many rulings that relate to e-discovery, it can be difficult to follow them all. There are a few, however, that should be highlighted.
This case has been posed as one of the most important e-discovery decisions made by Judge Scheindlin, who is considered one of the most knowledgeable jurists in the area of electronic discovery. Judge Scheindlin wrote one of the clearest decisions regarding the issuance of legal holds and the definition of gross negligence in e-discovery, which we addressed in our May 23rd post, Cases Setting e-Discovery Standards. Although the Judge found reason for sanctions in this case, she also made it clear that there were a significant number of challenges in e-discovery and that judges should not expect perfection from parties.
Wilson v. Thorn Energy, LLC (S.D.N.Y 2010
In this case, the defendants discarded a flash drive, which had held financial documents that were relevant to the case, when the data stored on the drive could not be read. The judge ruled that the defendants’ failure to preserve and produce documents in a timely manner constitutes gross negligence, demonstrating the importance of issuing litigation holds, and adhering to good faith preservation practices, as soon as possible in anticipation of litigation and certainly once a suit is filed/served.
Mt. Hawley Insurance Company v. Felman Prod. Inc. (S.D. W. Va., 2010)
This case demonstrates how important vetting keyword search terms and review QC/sampling can be in e-discovery. In this instance, 377 privileged emails were produced and, although perhaps rightfully attributed to a software indexing issue, the judge ruled that the error was more directly related to the plaintiff’s failure to “perform critical quality control sampling.” This ruling allowed documents containing particularly damaging attorney-client privileged information to be entered as evidence. .
Cases such as these demonstrate how judges are attempting to better define e-discovery guidelines. As e-discovery in litigation becomes more prevalent, the requirements for understanding electronically stored information will become even stricter. For this reason, many companies and firms are turning to e-discovery service providers like Advanced Discovery.