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eDiscoveryDaily

eDiscovery Best Practices: You May Need to Collect from Custodians Who Aren’t There
A little over a week ago, we talked about how critical the first seven to ten days are in the case once litigation hits.  Key activities to get a jump on the case include creating a list of key employees most likely to have documents relevant to the litigation and interviewing those key employees, as well as key department representatives, such as IT for information about retention and destruction policies.  These steps are especially important as they may shed light on custodians you might not think about – the ones who aren’t there.

No, I’m not talking about the Coen brothers’ movie The Man Who Wasn’t There, starring Billy Bob Thornton, I’m talking about custodians who are no longer with the organization.

Let’s face it, when key employees depart an organization, many of those organizations have a policy in place to preserve their data for a period of time to ensure that any data in their possession that might be critical to company operations is still available if needed.  Preserving that data may occur in a number of ways, including:

  • Saving the employee’s hard drive, either by keeping the drive itself or by backing it up to some other media before wiping it for re-use;
  • Keeping any data in their network store (i.e., folder on the network dedicated to the employee’s files) by backing up that folder or even (in some cases) simply leaving it there for access if needed;
  • Storage and/or archival of eMail from the eMail system;
  • Retention of any portable media in the employee’s possession (including DVDs, portable hard drives, PDAs, cell phones, etc.).

As part of the early fact finding, it’s essential to determine the organization’s retention policy (and practices, especially if there’s no formal policy) for retaining data (such as the examples listed above) of departed employees.  You need to find out if the organization keeps that data, where they keep it, in what format, and for how long.

When interviewing key employees, one of the typical questions to ask is “Do you know of any other employees that may have responsive data to this litigation?”  The first several interviews with employees often identify other employees that need to be interviewed, so the interview list will often grow to locate potentially responsive electronically stored information (ESI).  It’s important to broaden that question to include employees that are no longer with the organization to identify any that also may have had responsive data and try to gather as much information about each departed employee as possible, including the department in which they worked, who their immediate supervisor was and how long they worked at the company.  Often, this information may need to be gathered from Human Resources.

Once you’ve determined which departed employees might have had responsive data and whether the organization may still be retaining any of that data, you can work with IT or whoever has possession of that data to preserve and collect it for litigation purposes.  Just because they aren’t there doesn’t mean they’re not important.

So, what do you think?  Does your approach for identifying and collecting from custodians include those who aren’t there?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: First Pass Review – Domain Categorization of Your Opponent’s Data
Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

Yesterday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass®, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production.  One way to analyze that data is through “fuzzy” searching to find misspellings or OCR errors in an opponent’s produced ESI.

Domain Categorization

Another type of analysis is the use of domain categorization.  Email is generally the biggest component of most ESI collections and each participant in an email communication belongs to a domain associated with the email server that manages their email.

FirstPass supports domain categorization by providing a list of domains associated with the ESI collection being reviewed, with a count for each domain that appears in emails in the collection.  Domain categorization provides several benefits when reviewing your opponent’s ESI:

  • Non-Responsive Produced ESI: Domains in the list that are obviously non-responsive to the case can be quickly identified and all messages associated with those domains can be “group-tagged” as non-responsive.  If a significant percentage of files are identified as non-responsive, that may be a sign that your opponent is trying to “bury you with paper” (albeit electronic).
  • Inadvertent Disclosures: If there are any emails associated with outside counsel’s domain, they could be inadvertent disclosures of attorney work product or attorney-client privileged communications.  If so, you can then address those according to the agreed-upon process for handling inadvertent disclosures and clawback of same.
  • Issue Identification: Messages associated with certain parties might be related to specific issues (e.g., an alleged design flaw of a specific subcontractor’s product), so domain categorization can isolate those messages more quickly.

In summary, there are several ways to use first pass review tools, like FirstPass, for reviewing your opponent’s ESI production, including: email analytics, synonym searching, fuzzy searching and domain categorization.  First pass review isn’t just for your own production; it’s also an effective process to quickly evaluate your opponent’s production.

So, what do you think?  Have you used first pass review tools to assess an opponent’s produced ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: First Pass Review – Fuzzy Searching Your Opponent’s Data
Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

Tuesday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass®, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production.  One way to analyze that data is through synonym searching to find variations of your search terms to increase the possibility of finding the terminology used by your opponents.

Fuzzy Searching

Another type of analysis is the use of fuzzy searching.  Attorneys know what terms they’re looking for, but those terms may not often be spelled correctly.  Also, opposing counsel may produce a number of image only files that require Optical Character Recognition (OCR), which is usually not 100% accurate.

FirstPass supports “fuzzy” searching, which is a mechanism by finding alternate words that are close in spelling to the word you’re looking for (usually one or two characters off).  FirstPass will display all of the words – in the collection – close to the word you’re looking for, so if you’re looking for the term “petroleum”, you can find variations such as “peroleum”, “petoleum” or even “petroleom” – misspellings or OCR errors that could be relevant.  Then, simply select the variations you wish to include in the search.  Fuzzy searching is the best way to broaden your search to include potential misspellings and OCR errors and FirstPass provides a terrific capability to select those variations to review additional potential “hits” in your collection.

Tomorrow, I’ll talk about the use of domain categorization to quickly identify potential inadvertent disclosures and weed out non-responsive files produced by your opponent, based on the domain of the communicators.  Hasta la vista, baby! J

In the meantime, what do you think?  Have you used fuzzy searching to find misspellings or OCR errors in an opponent’s produced ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: First Pass Review – Synonym Searching Your Opponent’s Data
Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

Yesterday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass®, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production.  One way to analyze that data is through email analytics to see the communication patterns graphically to identify key parties for deposition purposes and look for potential production omissions.

Synonym Searching

Another type of analysis is the use of synonym searching.  Attorneys understand the key terminology their client uses, but they often don’t know the terminology their client’s opposition uses because they haven’t interviewed the opposition’s custodians.  In a product defect case, the opposition may refer to admitted design or construction “mistakes” in their product or process as “flaws”, “errors”, “goofs” or even “flubs”.  With FirstPass, you can enter your search term into the synonym searching section of the application and it will provide a list of synonyms (with hit counts of each, if selected).  Then, you can simply select the synonyms you wish to include in the search.  As a result, FirstPass identifies synonyms of your search terms to broaden the scope and catch key “hits” that could be the “smoking gun” in the case.

Thursday, I’ll talk about the use of fuzzy searching to find misspellings that may be commonly used by your opponent or errors resulting from Optical Character Recognition (OCR) of any image-only files that they produce.  Stay tuned!  🙂

In the meantime, what do you think?  Have you used synonym searching to identify variations on terms in an opponent’s produced ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Happy Independence Day from all of us at eDiscovery Daily and CloudNine Discovery!

eDiscovery Trends: First Pass Review – of Your Opponent’s Data
Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

In the past few years, applications that support Early Case Assessment (ECA) (or Early Data Assessment, as many prefer to call it) and First Pass Review (FPR) of ESI have become widely popular in eDiscovery as the analytical and culling benefits of conducting FPR have become obvious.  The benefit of these FPR tools to analyze and cull their ESI before conducting attorney review and producing relevant files has become increasingly clear.  But, nobody seems to talk about what these tools can do with opponent’s produced ESI.

Less Resources to Understand Data Produced to You

In eDiscovery, attorneys typically develop a reasonably in-depth understanding of their collection.  They know who the custodians are, have a chance to interview those custodians and develop a good knowledge of standard operating procedures and terminology of their client to effectively retrieve responsive ESI.  However, that same knowledge isn’t present when reviewing opponent’s data.  Unless they are deposed, the opposition’s custodians aren’t interviewed and where the data originated is often unclear.  The only source of information is the data itself, which requires in-depth analysis.  An FPR application like FirstPass®, powered by Venio FPR™, can make a significant difference in conducting that analysis – provided that you request a native production from your opponent, which is vital to being able to perform that in-depth analysis.

Email Analytics

The ability to see the communication patterns graphically – to identify the parties involved, with whom they communicated and how frequently – is a significant benefit to understanding the data received.  FirstPass provides email analytics to understand the parties involved and potentially identify other key opponent individuals to depose in the case.  Dedupe capabilities enable quick comparison against your production to confirm if the opposition has possibly withheld key emails between opposing parties.  FirstPass also provides an email timeline to enable you to determine whether any gaps exist in the opponent’s production.

Message Threading

The ability to view message threads for emails (which Microsoft Outlook® tracks), can also be a useful tool as it enables you to see the entire thread “tree” of a conversation, including any side discussions that break off from the original discussion.  Because Outlook tracks those message threads, any missing emails are identified with placeholders.  Those could be emails your opponent has withheld, so the ability to identify those quickly and address with opposing counsel (or with the court, if necessary) is key to evaluating the completeness of the production.

Tomorrow, I’ll talk about the use of synonym searching to find variations of your search terms that may be common terminology of your opponent.  Same bat time, same bat channel! 🙂

In the meantime, what do you think?  Have you used email analytics to analyze an opponent’s produced ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Scanning May No Longer Be Cool, But it’s Still Necessary
Frankly, I thought the fax machine would have been retired by now.  So many documents are generated electronically these days that I would have expected that most businesses would not only accept contracts and other documents via email but also no longer support fax receipt of those same documents.  But, many business not only still receive faxes, some still only accept faxes for key documents (or require you to hand deliver).  Progress is slow.

Likewise, most documents generated these days (as much as 99%) are never printed.  Hence, discovery has often become predominantly electronic discovery, as the documents are typically electronic.  Yet, I’m still surprised how many cases still have hard copy documents that require scanning and we still see a number of projects that have several boxes of documents that need to be scanned for discovery purposes.  If you still encounter hard copy documents in your discovery collections, here are some factors to consider if you’re going to scan them or hire a vendor to do so:

  • Document Preparation and Reassembly: To prepare documents for scanning, fasteners (staples, paper clips, etc.) must generally be removed.  Slip sheets are also often inserted in between documents with bar codes to tell the scanning software where the document breaks are – in some cases, the slip sheets are sophisticated enough to track master/attachment groups of documents. Reassembly involves returning the document collection to its original condition after scanning.
  • Deskew, Despeckle and Orientation Check: When scanning, you want to get the best quality scanned document possible not only because it’s easier and clearer to review, but also because it affects the quality of the Optical Character Recognition (OCR) process used to capture words for indexing and searching.  You don’t want the image to be skewed, or have a lot of speckles or be in the wrong orientation (e.g., portrait when it should be landscape).  The poorer quality of the image, the poorer the OCR.  Of course, some original documents are poor quality and difficult to read, so you can only do so much to make the resulting image readable.  But, you want to ensure the best quality possible.
  • Quality Assurance: In addition to any automated checks performed by the software, a manual double-check is also a good idea.  Any documents with issues (such as those described above) should be investigated to determine whether a second scan pass can yield better results.
  • Optical Character Recognition: It’s important to note that, without OCR, an image is just a picture and the words on the page cannot be searched.  Lack of OCR could cause you to miss important documents for discovery.  Because OCR is not an exact science, you want to use an application that supports “fuzzy” searching of OCR text to broaden search results to include other possible “hits” for the desired search terms.
  • Bates Numbering and Endorsing: Bates numbers used to be applied by a Bates “stamp”.  Later on, pre-printed Bates labels became popular.  Today, Bates numbers and endorsements (such as “Confidential” stamps) are typically applied electronically and are either “burned in” to the image (so that they cannot be removed) or “overlaid” (so that they can be removed – this is done in some cases when producing the same document in multiple cases with different Bates numbers).  It’s important to consider your requirements when selecting a method.
  • Single or Multi Page Images:  When creating TIFF files, you can create single page or multi-page TIFF files (multi-page files are usually one file per document).  Some review applications prefer one or the other, so it’s important to know your review software preferences.  PDF files are typically multi-page.

Those are just some of the considerations when scanning hard copy documents.  When using a vendor to scan documents, it’s important to understand how they address each of the areas above.

So, what do you think?  Do you still have hard copy documents to scan in most of your cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: When Litigation Hits, The First 7 to 10 Days is Critical

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel.  Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Activities:

  • Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: To estimate the scope of the case, it’s important to begin to prepare the list of key employees that may have potentially responsive data.  Information such as name, title, eMail address, phone number, office location and where information for each is stored on the network is important to be able to proceed quickly when issuing hold notices and collecting their data.
  • Issue Litigation Hold Notice and Track Results: The duty to preserve begins when you anticipate litigation; however, if litigation could not be anticipated prior to the filing of the case, it is certainly clear once the case if filed that the duty to preserve has begun.  Hold notices must be issued ASAP to all parties that may have potentially responsive data.  Once the hold is issued, you need to track and follow up to ensure compliance.  Here are a couple of recent posts regarding issuing hold notices and tracking responses.
  • Interview Key Employees: As quickly as possible, interview key employees to identify potential locations of responsive data in their possession as well as other individuals they can identify that may also have responsive data so that those individuals can receive the hold notice and be interviewed.
  • Interview Key Department Representatives: Certain departments, such as IT, Records or Human Resources, may have specific data responsive to the case.  They may also have certain processes in place for regular destruction of “expired” data, so it’s important to interview them to identify potentially responsive sources of data and stop routine destruction of data subject to litigation hold.
  • Inventory Sources and Volume of Potentially Relevant Documents: Potentially responsive data can be located in a variety of sources, including: shared servers, eMail servers, employee workstations, employee home computers, employee mobile devices, portable storage media (including CDs, DVDs and portable hard drives), active paper files, archived paper files and third-party sources (consultants and contractors, including cloud storage providers).  Hopefully, the organization already has created a data map before litigation to identify the location of sources of information to facilitate that process.  It’s important to get a high level sense of the total population to begin to estimate the effort required for discovery.
  • Plan Data Collection Methodology: Determining how each source of data is to be collected also affects the cost of the litigation.  Are you using internal resources, outside counsel or a litigation support vendor?  Will the data be collected via an automated collection system or manually?  Will employees “self-collect” any of their own data?  Answers to these questions will impact the scope and cost of not only the collection effort, but the entire discovery effort.

These activities can result in creating a data map of potentially responsive information and a “probable cost of discovery” spreadsheet (based on initial estimated scope compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side.

So, what do you think?  How quickly do you decide whether to litigate or settle?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: Judge Facciola Discusses Competency and Ethics
The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) require that an attorney possess and demonstrate a certain requisite level of knowledge in order to be considered competent to handle a given matter.  Specifically, Model Rule 1.1 states that, “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

As noted in Law Technology News, eDiscovery vendor iConect hosted a free webinar last week entitled “Duty of Competency and E-Discovery”, in which Joshua Gilliland, author of Bow Tie Law’s Blog and founder of legal iPad app developer Majority Opinion, discussed ethics and eDiscovery with Magistrate Judge John M. Facciola of the United States District Court for the District of Columbia.  The “sheriff” speaks!

The LTN article notes that, according to Judge Facciola, the requirement for competency now requires “a fundamental understanding of the way information is produced.” This entails: 1) some understanding of the information systems you and your client are relying upon; 2) knowing your own limitations; and 3) if you don’t understand, have someone at your side, i.e. an expert, who does, he declared.

With regard to ethics and eDiscovery, Judge Facciola gave an example of what might occur in a 26(f) meet and confer, which he called “the linchpin” of the 2006 amendments to the Federal Rules of Civil Procedure. Two lawyers are meeting in discovery in a case involving pharmaceuticals. One lawyer knows that the drug Pharmadine is spelled with an “e” not an “a” but doesn’t correct the opposing party even though he knows it will disrupt his opponent’s search, prolonging the discovery period by six months. Labeling this the difference between a material fact and not speaking to correct a mistake, Facciola says there’s “no ethical rule” for this, but, ultimately that lawyer is going to have to go before a judge and account for those extra six months. Model rules regulate a profession’s ethics, they don’t influence a judge’s decision. “Ethics rules are not a safe harbor,” Facciola warned.

For more observations from Judge Facciola topics such as cooperation, preservation and search methodology, click on this link to access the article from Law Technology News.  And, for more on the subject of competency and ethics as it relates to eDiscovery, check out this post and this post from our archives.

So, what do you think?  Are you addressing ethics and competency requirements in your firm as it relates to eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Milestones: 100,000 Visits!
While it may not be “billions and billions served” like McDonalds nor quite as electrifying as 1.21 jigawatts, we’re proud to announce that yesterday eDiscoveryDaily reached the 100,000 visit milestone!  As of this morning, we have had 100,160 visits to the site (reading 447 posts).  On behalf of everyone at CloudNine Discovery who has worked on the blog over the last 21+ months, thanks to all of you who read the blog every day!  In addition, thanks to the other publications that have picked up and either linked to or republished our posts!  We really appreciate the support!  Now, on to 200,000!

And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: “Naked” Assertions of Spoliation Are Not Enough to Grant Spoliation Claims
In Grabenstein v. Arrow Electronics, Inc., No. 10-cv-02348-MSK-KLM, 2012 U.S. Dist. LEXIS 56204 (D. Colo. Apr.23, 2012), Colorado Magistrate Judge Kristen L. Mix denied the plaintiff’s motion for sanctions, finding that their claims of spoliation were based on “naked” assertions that relevant eMails must exist even though the plaintiff could not demonstrate that such other eMails do or did exist.  The motion was also denied because the plaintiff could not establish when the defendant had deleted certain eMail messages, thereby failing to prove claims that the defendant violated its duty to preserve electronic evidence. Judge Mix noted that sanctions are not justified when documents are destroyed in good faith pursuant to a reasonable records-retention policy, if that’s prior to the duty to preserve such documents.

In this employment discrimination case, the plaintiff filed a motion for sanctions, claiming that the defendant failed to retain all eMail messages exchanged internally as well as between the defendant and the plaintiff’s insurer, MetLife, regarding the plaintiff’s short-term disability leave.

Defining the requirement for a finding of spoliation, Judge Mix stated, “A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.”

Here, Judge Mix found the plaintiff’s contentions that relevant eMails were missing to be “fatally unclear” since neither the plaintiff nor the defendant knew whether other such eMails existed. The plaintiff was also unable to provide any verification that MetLife’s log of relevant eMails exchanged with the defendant was incomplete or had been altered. As a result, Judge Mix was “unable to find that the e-mails produced by MetLife are incomplete and that Defendant destroyed the only complete versions of those e-mails”.

There were some eMails which the defendant admittedly did not preserve.  As to whether those eMails had been deleted after the duty to preserve them had arisen, Judge Mix discussed the standard under the spoliation doctrine: “‘[I]n most cases, the duty to preserve evidence is triggered by the filing of a lawsuit. However, the obligation to preserve evidence may arise even earlier if a party has notice that future litigation is likely.’” Here, Judge Mix found that the plaintiff had not produced any evidence that the defendant should have anticipated litigation prior to receiving actual notice of the filing of the lawsuit. The plaintiff was also unable to show any evidence at all when the defendant had destroyed the eMails that would rebut the defendant’s attorney’s statement that the eMails were deleted prior to the start of litigation. As a result, the plaintiff did not meet its burden of establishing that the defendant had violated its duty to preserve.

While finding that the defendants had violated a records retention policy regulation applicable to the Equal Employment Opportunity Commission when it deleted the eMails, Judge Mix found that it had not done so in bad faith, and it had been simply following its own eMail retention policy in the normal course of business. Accordingly, the plaintiff’s motion for sanctions was denied.

So, what do you think?  Was the ruling fair or should the defendants have been sanctioned for the deleted eMails?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.