Two Critical E-Discovery Lessons from Front Page News

Is 2018 the year that e-discovery became front page news? It may just be. Two more political stories with significant e-discovery elements graced the front page (or at least the web equivalent) of the New York Times in the past few days, as the federal criminal prosecution of Michael Cohen (President Trump’s longtime attorney) and a civil suit against Alex Jones (of Infowars) both reached significant milestones in the dog days of August.

While Cohen’s guilty pleas to multiple counts of bank and tax fraud earned headlines on Tuesday, August 21, 2018, a closer read of the story reveals the critical role e-discovery played in the process. After a four-month discovery process, special master Barbara Jones "completed her review last week [and] issued a series of reports in recent months, finding that only a fraction of the materials were privileged and the rest could be provided to prosecutors for their investigation. On Monday, the judge overseeing the review, Kimba M. Wood of Federal District Court in Manhattan, issued an order adopting Ms. Jones’s findings and ending the review process."

On Tuesday, Michael Cohen reached a plea agreement with federal authorities.

The NYT declined to speculate on the role of the e-discovery process in the outcome, stating, “It was unclear on Tuesday what role the materials that Ms. Jones reviewed, which were made available to prosecutors on a rolling basis during her review, may have had in the charges against Mr. Cohen.”

However, it seems safe to say that the outcome of e-discovery may have had a substantial effect on Cohen’s case strategy, seeing as he reached an agreement with the authorities the day following the court order adopting the special master’s report.

E-Discovery Lesson #1: Early insight into ESI can and should dictate case strategy.

For anyone familiar with Exterro’s educational themes, this lesson may sound familiar. After all, Exterro Director of Solutions Engineering made that very point in his article on early case assessment in Legaltech News.

Find out how new e-discovery technology can help you get ahead on case strategy.

Meanwhile, the public may soon get a lesson in spoliation, intent to deprive, and Federal Rule of Civil Procedure (FRCP) 37(e) courtesy of a filing in Travis County District Court in Austin, Texas. In a civil suit alleging defamation by Alex Jones of Infowars, lawyers representing families of two Sandy Hook shooting victims have filed a motion for sanctions accusing Jones of willful destruction of evidence.

The motion (which can be found here on the New York Times’ website) requests both punitive and remedial sanctions for Jones’ behavior, which allegedly includes deletion of social media pages and video content related to the Sandy Hook shooting.

According to the motion, "Mr. Jones appeared on his news show, and he admitted that he instructed his staff to delete the materials. Mr. Jones stated that 'CNN…was doing reports on things I said out of context about David Hogg, about Parkland, and about other events, and I just said "Delete that stuff.”' A few moments later in the video, Mr. Jones repeated his admission that he instructed his staff to 'delete it.'"

State District Judge Scott Jenkins will have a number of issues to unpack in making a ruling on the motion. While issues like “should the information have been preserved?” may be straightforward to resolve, a decision on punitive sanctions will rest on questions of both recoverability of the data and whether or not there was specific intent to deprive the opposition of access to it.

Given that the Times dug into these questions in its article, even going so far as to explain adverse inference instructions (“the material that was destroyed could be presumed by the court as supporting [the plaintiffs’] claims against Mr. Jones”), news consumers may be treated to a dissection of FRCP 37(e) unlike any other in the mainstream media. (If you want a preview, download Exterro’s infographic Do ESI Spoliation Sanctions Under Rule 37(e) Apply? and walk through our handy flowchart.)

Since the next hearing in the suit is scheduled for August 30th, and a ruling is expected before then, we should soon have a front page-worthy case law alert for Exterro’s E-Discovery Case Law Library in the very near future!

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E-Discovery Lesson #2: Understand your preservation obligations once there is a reasonable likelihood of litigation.

The dubious value of musing publicly about the deletion of relevant ESI seems a rather obvious lesson, so perhaps the better takeaway for readers should be to understand when preservation duties arise—and to make sure to fulfill them--or risk facing e-discovery sanctions.

As always, keep Exterro's E-Discovery Breakdown bookmarked in your browser for updates like this on e-discovery in the news, as well as case law updates, best practices, and more!