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“Defensible E-Discovery”: What does the phrase really mean?

Created on June 28, 2012

Vice President, E-Discovery

Corporate internal legal teams can learn a few things from the movie Fight Club. Tyler Durden (played by Brad Pitt), one of the main characters in the movie, creates and maintains a simple and clear overarching rule governing the club he creates:

  1. The first rule of Fight Club is: you do not talk about Fight Club
  2. The second rule of Fight Club is: you DO NOT talk about Fight Club!

Even though the movie Fight Club may be fictional, legal teams should channel Tyler's focus and clarity to their e-discovery practices. Instead of thinking about the many intricacies of e-discovery, which can be overwhelming, legal teams should focus on one comprehensive objective, creating and maintaining a defensible e-discovery process.

In e-discovery, process disasters are very real as evidenced by recent court rulings in Taydon v. Greyhound Lines, Inc., EEOC v. McCormick & Schmick's Seafood Restaurants, Inc., and 915 Broadway Associates, LLC v. Paul, Hastings, Janofsky & Walker, LLP. Yet, the rules around having a defensible e-discovery process are still open to wide interpretation. Even so, federal court rulings are creating clearer guidelines for which judges are instructing legal teams on what constitutes an adequate and defensible e-discovery process. United States Magistrate Judge Cheryl Zwart took it upon herself in Peter Kiewit Sons, Inc. v. Wall Street Equity Group, Inc. (D. Neb. May 18, 2012) to give the defendants a primer on defensibility.

In this trademark infringement case, the plaintiff, Peter Kiewitt Sons, alleged that the defendant, Wall Street Equity Group, improperly used the plaintiff's trademark in attempts to solicit customers. Judge Zwart's awarded monetary sanctions and a costly adverse jury instruction against defendant due to the defendant's multiple discovery abuses made in bad faith, including:

  • False Affidavits and Testimony: After a forensic examination of the defendant's computers, the court ruled that throughout discovery on multiple occasions the defendant misrepresented the number of responsive documents that was in their possession.
  • Hiding of Electronic Storage Devices: The defendant removed targeted computer drives from a third party the day before the third party was due to produce the drives to the court.
  • Inadequate Search for Responsive Information: An under qualified employee for the defendant without any formal computer science training was tasked at conducting a comprehensive search of the defendant's computer systems.
  • Intentional Destruction of Evidence: Due to the defendant's false affidavits and testimony, throwing away a company computer server during pending discovery motions and removal of computer drives from a third party right before the production date, led court to believe that defendant “committed fraud on this court, and intentionally destroyed evidence with a desire to suppress the truth in this case."

Aside from the defendant's problematic behavior, Judge Zwart's took the opportunity to explain the necessary requirements for creating a defensible e-discovery process:

  1. Suspend routine document destruction policy
  2. Put a legal hold in place
  3. Legal teams become fully aware of company's retention policy and data infrastructure
  4. Communicate / Interview “key players" to determine how data is stored
  5. Monitor legal hold compliance to ensure that all sources of discoverable information are identified and searched
  6. Retain all relevant case information
  7. Produce all information that is responsive to opposing party's production requests

Listing these seven steps is easy. What's difficult is retaining and identifying the right people, process and tools to accomplish all of these steps together. It takes an investment in time, money and resources to create a defensible e-discovery process. But in the era of big data, it's a venture that every corporation must address as courts are no longer tolerating ill-considered e-discovery processes. Once all these components are in place, legal teams will have created, according to the federal court, a defensible e-discovery process that will serve two purposes: (A) protection from e-discovery sanctions and (B) reasonable, proportional discovery parameters with opposing counsel. To keep on the right track, legal teams would be wise to adopt an axiom similar to that in Fight Club:

  1. The first rule of e-discovery is: have a defensible e-discovery process.
  2. The second rule of e-discovery is: have a DEFENSIBLE e-discovery process!

Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.