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and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - email@example.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM
Sunday, March 07, 2004
Last Year's House of Horrors... Last Year's House of Horrors...
Reviewing many of the key e-discovery decisions of 2003, was not unlike the summer of 1978 - the golden era of horror filsms - Halloween, Attack of the Killer Tomatoes, Omen II and Magic. I don't think I slept in 1978. At the very least, I avoided puppet shows, trick-or-treating and ordered my BLT sandwhiches without the T's.
What 1978 was to a frightened fifth grader, 2003 was to corporate counsel. The E-discovery decisions that came down last year were enough to make Michael Meyers himself have nightmares. These rulings didn't even need Jamie Lee Curtis to deliver ghastly gore....
The 2003 thriller decisions center around a common theme - the horrors of a lack of a electronic document discovery response scheme. This was to 2003 what hockey masks and large kitchen knives were to 1978. Few sources chronicle last year's haunted house of horrors as well as recent judicial opinions spanning the Federal, State and Administrative judiciaries.
In Metropolitan Opera Assn. V. Local 100, 2003 U.S. Dist. Lexis 1077(SDNY, 2003), the court held that a party that fails to timely produce reasonably requested electronic evidence may be subject to punitive damages and also liable for attorney’s fees incurred by the requesting party in efforts to move the court to compel production.
Similarly, the court in Medtronic Sofamor Danek, Inc. v. Sofamor Danek Holding Co., No. 01-2373-MIV, 2003 U.S. Dist. Lexis 8587 (WD Tenn. 2003) the court mandated the restoration and production of backup media from a corporate defendant where it was clear that the archival media contained data relevant to the litigation. The court can fashion sanctions for a failure to produce such data including monetary sanctions and adverse inference instructions to a jury. The corporation charged with production in Residential Funding Corp. v. Degeorge Financial Corp., 306 F.3d 1999 (2003) a creditor’s rights dispute, was hit with both sanctions largely due to the absence of a responsive process in place instead of a reactive one.
Other frightening decisions have resulted in penalties levied against producing parties who are unable to respond effectively to electronic document discovery requests because the producing organization fails to adhere to a sufficient document retention policy resulting in a judicial finding of spoliation with attendant sanctions .
The corporation that insists that its potentially responsive documentation exists in paper format and therefore tends to shun a request for electronic records, will find that the courts are routinely compelling the electronic version of documents rather than their paper counterparts even after the paper based discovery has been produced.
In that spine tingling year, the Southern District of New York ruled that a requesting party who had duly received the paper version of the documents they had requested was correct in its assertion that the paper production was insufficient and the producing party must reproduce the documents in their electronic formats. In re Honeywell Int’l Sec. Litig., 2003 WL 22722961 (SDNY Nov. 18th, 2003). The rationale for the required repeat production of electronic documents centers around the fact that paper production alone makes it nearly impossible for counsel to determine which documents belong with which e-mail attachments.
The doors to the corporate hall of horrors (and shame) remain wide open for litigants who fail to implement and maintain consistent processes, policies, communications and technologies that enable adequate responsiveness to the new breed of discovery requests. The modern corporate counsel is charged with implementing a working policy which empowers the producing corporation to effectively and quickly respond to requests for digital documentation with ease, structure and precision.
Will 2004 unearth a tombo of similar horrors? The courts don't seem to be shying away from imposing liability towards corporate counsel who are simply ill prepared to respond to an electrnoic discovery request. Can we expect the horrors to continue this year? History has a way of repeating itself. Just when moviegoers though that the worst was over as 1978 turned into 1979... along came a little flick called Phantasm...
posted by Alexander | 10:18 PM