29 Mar 2011

It’s a Matter of Class: Wal-Mart Litigation’s Impact on E-Discovery

Posted in: Thursday E-Discovery Case Law 4 Comments

Sarah Brown

Electronic discovery and litigation practitioners everywhere are closely following the Wal-Mart litigation that started back in 2001 that today made it to the high court. At stake are the litigatory fates of nearly 3 million women, vying for class-action status in their sex discrimination employment suit against one of the largest companies in the world.

A lot hangs on the outcome of this case – a loss for the plaintiffs means it will be harder for low-wage workers to gather the resources needed to go up against big business. A win, according to several amicus briefs filed by large corporations, means that legal departments will have less to worry about when it comes to “bet-the-company litigation” since each case will likely have to be brought alone, or in smaller groups.

So sweeping social justice issues aside, what does all this mean for electronic discovery? For one, whether Wal-Mart wins or loses, its legal and IT departments will be tasked with a massive amount of data that must be preserved. In fact, according to pronouncements from Judge Scheindlin and generally accepted best practices mandating that as soon as litigation is anticipated, a legal hold must be issued, Wal-Mart is already required to preserve the data related to each member of the massive class action. If they don’t, they could face potentially crippling sanctions when the case – in its class action form, or in the form of many smaller suits – eventually makes it to court.

Additionally, if the court rules against the class-action designation, Wal-Mart will be faced with many closely related cases that will each need to make their way through the EDRM. From a technology perspective, many other legal hold software solutions force counsel to treat each matter separately, and thus require data collection for each case, even if some data has previously been collected and indexed for a prior, similar case. This can get pretty expensive, especially when a software license is based on volume pricing, such as per-gigabyte, rather than an enterprise license.

Since we have practicing attorneys, experienced litigators, e-discovery project managers, paralegals and legal-IT technologists, on our product management team here at Exterro, we foresaw these types of problems and designed our software to support cases like Wal-Mart’s. For example, users can link similar matters, thus eliminating the need to perform expensive re-collections on data, and can see each custodian’s history, putting legal holds into context and reducing the amount of burdensome work and eliminating the need to issue overlapping legal holds. Learn more about our software suite here.

4 Responses to “It’s a Matter of Class: Wal-Mart Litigation’s Impact on E-Discovery”

  1. Greg Fredricks says:

    The point is simply this … women should be paid the same as men for the same job/skill-set/performance. If a high performing man makes $25,000 for a particular job, the high performing women should make $25,000. If a high performing man makes $250,000 for a particular job, the high performing women should make $250,000.

    Equal pay for equal service/performance regardless of gender.

  2. Gwynne Knowles says:

    Can a business be too big for a class action suit? Responses to even the simplest of discovery requests can cost a company hundreds of thousands of dollars. If this class action moves forward defining the scope of the discovery request will be critical in limiting the cost of the production and review phase of the EDRM.

  3. Dan Klinger says:

    A matter of this magnitude will stress even the most advanced E-Discovery processes for any company. Matters like this should be a wake-up call for companies to reexamine their E-Discovery processes to ensure their state of readiness. E-Discovery is journey of continuous improvement and not a destination of complacency. I’m a strong believer that companies must partner with E-Discovery vendors that are visionaries and are progressive with their defensible solutions to be ready for a significant matter.

  4. Jeff Bonner says:

    To Greg Fredricks:

    “Equal pay for equal service/performance regardless of gender.”

    I agree wholeheartedly… however there is something called salary negotiation. If you can’t negotiate a salary and someone else can – is this necessarily injustice? It seems that a lot of people are too willing to pull the pin on the injustice grenade when the slightest hint of it arises.

    Again, I agree on the equality of the sexes, but without more hard facts, how can anyone make a judgment on this?

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