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eDiscovery Best Practices: Competency Ethics – It’s Not Just About the Law Anymore
 

A few months ago at LegalTech New York, I conducted a thought leader interview with Tom O’Connor of Gulf Coast Legal Technology Center, who didn’t exactly mince words when talking about the trend for attorneys to “finally tak[e] technology seriously”.  As he noted, “lawyers are finally trying to take some time to try to get up to speed – whining and screaming pitifully all the way about how it’s not fair, and the sanctions are too high and there’s too much data.  Get a life, get a grip.  Use the tools that are out there that have been given to you for years.” 

Strong words, indeed.  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."

Preparation not only means understanding a specific area of the law (for example, antitrust or patent law, both highly specialized.).  It also means having the technical knowledge and skills necessary to serve the client in the area of discovery.

The ethical responsibilities of counsel these days includes competently directing and managing the identification, preservation, collection, processing, analysis, review and production of electronically stored information (ESI) required to be produced pursuant to lawful discovery requests.  If counsel does not have that level of competency in a particular area, he or she is obligated to either acquire the knowledge or skill necessary to support those needs, or include someone else who does have the requisite skills as part of the representation.

Not too long ago, I met with an attorney and discussed how they handled preservation obligations with their clients.  The attorney indicated that he expected his clients to self-manage their own preservation and collection.  When I asked him why he didn’t try to get more involved to make sure it was being handled properly, he said, “I don’t want to alarm them.  They might decide they need a bigger firm.”

Recent case law is full of cases where counsel didn’t fully understand their eDiscovery obligations, and got themselves and their clients “burned” in the process.  If your organization gets involved in litigation, make sure to include eDiscovery competence among the factors you consider when determining counsel qualifications to represent you.

So, what do you think?  Is your counsel eDiscovery savvy?  If not, do they use a provider that is?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Completing Production AFTER Trial is Too Late

In DL v. District of Columbia, No. 05-1437 (RCL) (D.D.C. May 9, 2011), repeated, flagrant, and unrepentant failures of the District of Columbia to comply with discovery orders, failure to supplement discovery responses, and eventual production of thousands of e-mails—some more than two years old—after the date of trial resulted in a sanction of waiver of privilege over documents sought by plaintiffs.

Plaintiffs filed an action seeking injunctive and declaratory relief for the failure of the District of Columbia Government to provide them with a free appropriate public education as required under the Individuals with Disabilities and Education Act. On the first day of trial six years later, counsel for the District acknowledged that the District several days earlier had begun a rolling production of thousands of emails per day that was expected to continue through the end of trial. Counsel for the District stated that the court had not been informed of production problems because it had been hoped review of the documents for relevance and privilege and thus production of the documents could have been completed earlier. From the bench, the court ordered the District to produce all of the email without objection and with privilege waived within one week of the end of the trial so that plaintiffs could seek to supplement the trial record if necessary. The District sought reconsideration of the order.

Likening the District’s posture to an airplane with landing gear that deploys only after touchdown, the court denied the District’s motion. Waiver of privilege was an appropriate sanction because it was just and was proportional between offense and sanction, considering the District’s violation of multiple discovery orders and failure to meet its obligation to supplement its discovery responses. The court concluded that its sanction was justified considering prejudice to plaintiffs, prejudice to the judicial system, and the need to deter similar misconduct in the future. Since the District chose not to bring the situation to the court’s attention until the day of trial, the court “had no practical alternative short of entering a default.”

The court held that whether the District had acted in good faith and whether plaintiffs also had committed discovery violations was irrelevant:

Whether the District made a good-faith effort to produce all responsive e-mails before the trial is irrelevant. As explained above, it was not sanctioned for failing to make a good-faith effort. It was sanctioned for openly, continuously, and repeatedly violating multiple Court orders, failing to adhere to or even acknowledge the existence of the Federal Rules’ discovery framework, and committing a discovery abuse so extreme as to be literally unheard of in this Court. The Rules require more than simply making a good-faith effort to produce documents. They require adherence to a very precise framework for navigating the discovery process. Moreover, the duty to adhere to clear Court orders is among a lawyer’s most basic. Were it not for those two directives—the Federal Rules’ discovery framework and Court orders regarding discovery — discovery would devolve into pure bedlam. Disciplined adherence to those Rules and Orders on the part of courts as well as parties is the only tool our system has to wrangle the whirlwind as it were and tame an otherwise unmanageable part of the litigation process. A good-faith effort to produce documents in the absence of adherence to Court orders and the Federal Rules is useless.

So, what do you think?  Have you ever had opposing counsel try to produce documents at the beginning of trial – or even after?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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: Sue Me and Lose? Pay My Costs.

In a ruling that may give some plaintiffs’ lawyers pause, a federal judge in Pittsburgh has ruled that the winning defendants in an antitrust case are entitled to reimbursement of more than $367,000 in eDiscovery costs.

In Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., No. 2:07-cv-1294, 2011 WL 1748620 (W.D. Pa. May 6, 2011), U.S. District Judge Terrence F. McVerry issued a 25 page opinion, finding that courts are increasingly approving awards of eDiscovery costs, noting that one judge described them as “the 21st century equivalent of making copies.”

In the suit, Race Tires America claimed that its competitor, Hoosier Racing Tire Corp., violated Sections 1 and 2 of the Sherman Act by entering into exclusive dealing contracts with motorsport sanctioning body Dirt Motor Sports Inc. that included a “single tire rule.”  Under the single tire rule, Dirt Motor Sports required that drivers and racers participating in its races use a specific brand of tire for a series of races or for the entire racing season, which Race Tires America argued shut it out of the market.

But Judge McVerry dismissed the suit on summary judgment, holding that such exclusive contracts are permissible in instances when a sports-related organization has freely decided that it wants exclusivity and has good-faith, pro-competitive or business justifications for doing so.  The decision was appealed to the 3rd Circuit, where the defendants won again and, after winning the appeal, the defendants filed their bills of costs in the district court.

The plaintiff argued that the costs should be disallowed because “electronic document collection, hard drive imaging and indexing and searching, commonly referred to as ‘eDiscovery charges,’ are not enumerated under Section 1920(4), and thus are not properly deemed recoverable costs.”  But Judge McVerry found that Congress, in the Judicial Administration and Technical Amendments Act of 2008, modified the wording of Section 1920(4), changing the phrase “fees for exemplifications and copies of papers” to read “fees for exemplification and the costs of making copies of any materials.”  Since that amendment, Judge McVerry said, “no court has categorically excluded eDiscovery costs from allowable costs.”  For example, in an Idaho case, Judge McVerry noted, the court awarded $4.6 million for the costs incurred for “the creation of a litigation database.”

Given the extent of the defendant’s eDiscovery activities, including copying nearly 500 gigabytes of data in response to over 400 search terms and creation of a litigation database, the court awarded $367,000 of the $389,000 eDiscovery costs requested by the defendants.

So, what do you think?  Should plaintiffs have to reimburse eDiscovery costs to defendants if they lose?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Defendant Can’t Be Plaintiff’s Friend on Facebook

In Piccolo v. Paterson, Bucks County, Pa., Common Pleas Court Judge Albert J. Cepparulo denied the motion from the defendant requesting access to the photos of plaintiff Sara Piccolo posted in her Facebook account.

Piccolo filed an action against the defendants after being injured in a one-car accident while a passenger in a car driven by defendant Lindsay Paterson. According to the defense motion, filed by attorneys at Moore & Riemenschneider, Piccolo testified she had a Facebook account and was asked at deposition if the defense counsel could send a “neutral friend request” to Piccolo so that he could review the Facebook postings Piccolo testified she made every day.  Piccolo’s attorney, Benjamin G. Lipman , ultimately denied the request, responding that the “‘materiality and importance of the evidence … is outweighed by the annoyance, embarrassment, oppression and burden to which it exposes'” the plaintiff.

The defense argued that access to Piccolo’s Facebook page would provide necessary and relevant information related to the claims by Piccolo and cited a case, McMillen v. Hummingbird Speedway, Inc. (previously summarized by eDiscoveryDaily here), in which the court ordered the plaintiff to provide his username and password to the defendant’s attorney. The plaintiff’s attorney argued that the defense had only asked for the pictures Piccolo posted on Facebook and that they had already been provided with “as complete a photographic record of the pre-accident and post-accident condition” of Piccolo.

As a result of the accident in May 2007, Piccolo suffered lacerations to her lip and chin when hit in the face with an airbag. She had 95 stitches to her face and then surgery to repair her scarring six months later. With permanent scars on her face, Piccolo allowed the insurer in 2008 to take photographs of her face and gave the defense 20 photos of her face from the week following the accident and five photos from the months just before the accident.

In Piccolo’s response to the defense motion, Lipman argued that defense counsel had only asked at Piccolo’s deposition about the pictures she posted on Facebook, not any textual postings. He said that the defendant had already been provided “as complete a photographic record of the pre-accident and post-accident condition” of Piccolo as she “could reasonably have a right to expect in this case.”

Judge Cepparulo agreed, ruling with the plaintiff and denying the defense access to Piccolo’s Facebook page in a one-paragraph motion.

So, what do you think?  Did the judge make the correct call or should he have issued a ruling consistent with McMillen?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Usefulness of Facebook’s Self Collection Mechanism
 

We’ve written about Facebook a lot on this blog.  Shortly after this blog was launched, we provided information on Facebook’s subpoena policy.  We’ve also talked about the eDiscovery implications associated with the rollout of Facebook’s new email messaging system, dubbed “Facemail”.  And, just last week, we chronicled a case involving Facebook where they were ordered to produce documents instead of just merely providing access to them.  And, we haven’t even mentioned the latest revelations that Facebook may have secretly hired a PR firm to plant negative stories about Google (oops, we just did!).

But perhaps our most popular post regarding Facebook was regarding the self collection mechanism that they rolled out last October, which we found out about via our LegalTech interview with Craig Ball published back in March after our February interview (Craig also wrote an article about the feature in Law Technology News in February).

Now, another article has been written about the usefulness of Facebook’s self collection mechanism (called “Download Your Information”) in the blog E-Discovery Law Alert, entitled How Useful is Facebook's "Download Your Information" Feature in E-Discovery?, written by Patrick V. DiDomenico.

The author of this article conducted a test by downloading his information via the utility, deleting some information from his Facebook profile – “an email message, some wall posts, comments, photos, and even a friend (not a close friend)” – hopefully, he added the friend back.  Then, he downloaded his information again, every day for four days, with no change for the first three days.  On the fourth day, most of the deleted information disappeared from the download, except the email message (which disappeared when he ran the utility one more time).

The conclusion was that the mechanism “does not appear to ‘look back’ and recover deleted information in the user’s account”.  Thoughts:

  • With no change in the download in the first three days, the author notes that “Facebook did not take a fresh snapshot of my account every day – it just re-downloaded the same file three days in a row”.  He doesn’t mention whether he added any content during this time.  It would be interesting to see if that would force a change.
  • I don’t believe that there is any specific documentation from Facebook as to how it handles additions and deletions and how often the snapshot is updated.  If not, it might behoove them to create some, it might save them some subpoena requests.
  • The author notes that “it is inadvisable for lawyers to rely solely on the Download Your Information feature for discovery of an adversary’s Facebook information” as it “gives no assurance that a litigant’s attempt to delete evidence will be revealed”.  On the other hand, it may be still an appropriate mechanism to use for your own discovery to preserve your own information.  Facebook may also store deleted information on backup tapes, so a subpoena could catch your opponent red-handed if you can justify the discovery of those tapes.  Food for thought.

So, what do you think?  Have you had any Facebook discovery requests in your eDiscovery projects?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Does Anybody Really Know What Time It Is?
 

Does anybody really know what time it is?  Does anybody really care?

OK, it’s an old song by Chicago (back then, they were known as the Chicago Transit Authority).  But, the question of what time it really is has a significant effect on how eDiscovery is handled.

Time Zone: In many litigation cases, one of the issues that should be discussed and agreed upon is the time zone to apply to the produced files.  Why is it a big deal?  Let’s look at one example:

A multinational corporation has offices from coast to coast and potentially responsive emails are routinely sent between East Coast and West Coast offices.  If an email is sent from a party in the West Coast office at 10 PM on June 30, 2005 and is received by a party in the East Coast office at 1 AM on July 1, 2005, and the relevant date range is from July 1, 2005 thru December 31, 2006, then the choice of time zones will determine whether or not that email falls within the relevant date range.  The time zone is based on the workstation setting, so they could actually be in the same office when the email is sent (if someone is traveling).

Usually the choice is to either use a standard time zone for all files in the litigation – such as Greenwich Mean Time (GMT) or the time zone where the producing party is located – or to use the time zone associated with each custodian, which means that the time zone used will depend on where the data came from.  It’s important to determine the handling of time zones up front in cases where multiple time zones are involved to avoid potential disputes down the line.

Which Date to Use?: Each email and efile has one or more date and time stamps associated with it.  Emails have date/time sent, as well as date/time received.  Efiles have creation date/time, last modified date/time and even last printed date/time.  Efile creation dates do not necessarily reflect when a file was actually created; they indicate when a file came to exist on a particular storage medium, such as a hard drive. So, creation dates can reflect when a user or computer process created a file. However, they can also reflect the date and time that a file was copied to the storage medium – as a result, the creation date can be later than the last modified date.  It’s common to use date sent for Sent Items emails and date received for Inbox emails and to use last modified date for efiles.  But, there are exceptions, so again it’s important to agree up front as to which date to use.

So, what do you think?  Have you had any date disputes in your eDiscovery projects?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Facebook Did Not Deduce That They Must Produce

In this case, United States Magistrate Judge Howard Lloyd of the Northern District of California compelled Facebook to produce ESI that was previously produced in a converted, non-searchable format and further ordered Facebook not to use a third-party vendor’s online production software to merely “provide access” to it.  The court’s order granting the plaintiff’s Motion To Compel Production in In re Facebook PPC Advertising Litigation, 2011 WL 1324516 (N.D.Cal. Apr. 6, 2011) addressed the importance of ESI Protocols, the requirement to produce ESI in native formats, and production of documents versus providing access to them.  A copy of the order can be found here.

Several plaintiffs brought a class action against Facebook for breach of contract and violation of California’s Unfair Competition Law, suing Facebook for allegedly misrepresenting the quality of its “click filters,” which are filters used to prevent charging merchants when advertisements are inadvertently clicked.  When discovery disputes occurred, plaintiffs filed their Motion To Compel, alleging:

  1. Facebook refused to agree to an ESI Protocol to establish the manner and form of electronic production, including agreement on search words or phrases, custodians and time frames for production,
  2. Facebook uploaded its responses to discovery requests to a commercial website (Watchdox.com) in a manner that seriously limited the plaintiffs’ ability to review them.  Documents on Watchdox.com could not be printed and Facebook, citing confidentiality concerns, retained the ability to cause documents to expire and no longer be accessible after a period of time.
  3. The documents loaded to Watchdox.com, as well as others that were actually produced, were not in their native format, and thus were unsearchable and unusable.  One such document was an 18,000 page customer complaint database printed to PDF which lacked any searchable features.

With regard to the refusal to agree to an ESI protocol, Facebook argued that such a protocol would result in “forcing the parties to anticipate and address all potential issues on the form of electronic production” and “would likely have the result of frustrating and slowing down the discovery process.” The court rejected this argument, noting “The argument that an ESI Protocol cannot address every single issue that may arise is not an argument to have no ESI Protocol at all”.

In reviewing Facebook’s production protocol, the Court noted that “each of these steps make the discovery process less efficient without providing any real benefit.” and found that Facebook’s privacy concerns were unreasonable since a two tiered protective order already existed in the case as well as the fact that confidential documents could be marked as such to prevent inadvertent disclosures.  The Court held that Facebook’s use of Watchdox.com was unduly burdensome on the Plaintiffs and thus ordered Facebook to produce any documents that had been uploaded to Watchdox.com in their native searchable formats.  The Court also ordered Facebook to reproduce previously produced documents that were provided in an unsearchable format in their native searchable formats.

So, what do you think?  Is merely providing access to documents sufficient for production?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: 4 Steps to Effective eDiscovery With Software Analytics
 

I read an interesting article from Texas Lawyer via Law.com entitled “4 Steps to Effective E-Discovery With Software Analytics” that has some interesting takes on project management principles related to eDiscovery and I’ve interjected some of my thoughts into the analysis below.  A copy of the full article is located here.  The steps are as follows:

1. With the vendor, negotiate clear terms that serve the project's key objectives.  The article notes the important of tying each collection and review milestone (e.g., collecting and imaging data; filtering data by file type; removing duplicates; processing data for review in a specific review platform; processing data to allow for optical character recognition (OCR) searching; and converting data into a tag image file format (TIFF) for final production to opposing counsel) to contract terms with the vendor. 

The specific milestones will vary – for example, conversion to TIFF may not be necessary if the parties agree to a native production – so it’s important to know the size and complexity of the project, and choose only an experienced eDiscovery vendor who can handle the variations.

2. Collect and process data.  Forensically sound data collection and culling of obviously unresponsive files (such as system files) to drastically decrease the overall review costs are key services that a vendor provides in this area.  As we’ve noted many times on this blog, effective culling can save considerable review costs – each gigabyte (GB) culled can save $16-$18K in attorney review costs.

The article notes that a hidden cost is the OCR process of translating extracted text into a searchable form and that it’s an optimal negotiation point with the vendor.  This may have been true when most collections were paper based, but as most collections today are electronic based, the percentage of documents requiring OCR is considerably less than it used to be.  However, it is important to be prepared that there are some native files which will be “image only”, such as TIFFs and scanned PDFs – those will require OCR to be effectively searched.

3. Select a data and document review platform.  Factors such as ease of use, robustness, and reliability of analytic tools, support staff accessibility to fix software bugs quickly, monthly user and hosting fees, and software training and support fees should be considered when selecting a document review platform.

The article notes that a hidden cost is selecting a platform with which the firm’s litigation support staff has no experience as follow-up consultation with the vendor could be costly.  This can be true, though a good vendor training program and an intuitive interface can minimize or even eliminate this component.

The article also notes that to take advantage of the vendor’s more modern technology “[a] viable option is to use a vendor's review platform that fits the needs of the current data set and then transfer the data to the in-house system”.  I’m not sure why the need exists to transfer the data back – there are a number of vendors that provide a cost-effective solution appropriate for the duration of the case.

4. Designate clear areas of responsibility.  By doing so, you minimize or eliminate inefficiencies in the project and the article mentions the RACI matrix to determine who is responsible (individuals responsible for performing each task, such as review or litigation support), accountable (the attorney in charge of discovery), consulted (the lead attorney on the case), and informed (the client).

Managing these areas of responsibility effectively is probably the biggest key to project success and the article does a nice job of providing a handy reference model (the RACI matrix) for defining responsibility within the project.

So, what do you think?  Do you have any specific thoughts about this article?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Sedona Conference Database Principles
 

A few months ago, eDiscovery Daily posted about discovery of databases and how few legal teams understand database discovery and know how to handle it.  We provided a little pop quiz to test your knowledge of databases, with the answers here.

Last month, The Sedona Conference® Working Group on Electronic Document Retention & Production (WG1) published the Public Comment Version of The Sedona Conference® Database Principles – Addressing the Preservation & Production of Databases &Database Information in Civil Litigation to provide guidance and recommendations to both requesting and producing parties to simplify discovery of databases and information derived from databases.  You can download the publication here.

As noted in the Executive Overview of the publication, some of the issues that make database discovery so challenging include:

  • More enterprise-level information is being stored in searchable data repositories, rather than in discrete electronic files,
  • The diverse and complicated ways in which database information can be stored has made it difficult to develop universal “best-practice” approaches to requesting and producing information stored in databases,
  • Retention guidelines that make sense for archival databases (databases that add new information without deleting past records) rapidly break down when applied to transactional databases where much of the system’s data may be retained for a limited time – as short as thirty days or even thirty seconds.

The commentary is broken into three primary sections:

  • Section I: Introduction to databases and database theory,
  • Section II: Application of The Sedona Principles, designed for all forms of ESI, to discovery of databases,
  • Section III: Proposal of six new Principles that pertain specifically to databases with commentary to support the Working Group’s recommendations.  The principles are stated as follows:
    • Absent a specific showing of need or relevance, a requesting party is entitled only to database fields that contain relevant information, not the entire database in which the information resides or the underlying database application or database engine.
    • Due to differences in the way that information is stored or programmed into a database, not all information in a database may be equally accessible, and a party’s request for such information must be analyzed for relevance and proportionality.
    • Requesting and responding parties should use empirical information, such as that generated from test queries and pilot projects, to ascertain the burden to produce information stored in databases and to reach consensus on the scope of discovery.
    • A responding party must use reasonable measures to validate ESI collected from database systems to ensure completeness and accuracy of the data acquisition.
    • Verifying information that has been correctly exported from a larger database or repository is a separate analysis from establishing the accuracy, authenticity, or admissibility of the substantive information contained within the data.
    • The way in which a requesting party intends to use database information is an important factor in determining an appropriate format of production.

To submit a public comment, you can download a public comment form here, complete it and fax (yes, fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

eDiscovery Daily will be delving into this document in more detail in future posts.  Stay tuned!

So, what do you think?  Do you have a need for guidelines for database discovery?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Destroy Data, Pay $1 Million, Lose Case

A federal judge in Chicago has levied sanctions against Rosenthal Collins Group LLC and granted a default judgment to the defendant for misconduct in a patent infringement case, also ordering the Chicago-based futures broker’s counsel to pay “the costs and attorneys fees incurred in litigating this motion” where plaintiff’s agent modified metadata related to relevant source code and wiped several relevant disks and devices prior to their production and where the court found counsel participated in “presenting misleading, false information, materially altered evidence and willful non-compliance with the Court’s orders.”

In Rosenthal Collins Group, LLC v. Trading Techs. Int’l, No. 05 C 4088, 2011 WL 722467 (N.D. Ill. Feb. 23, 2011), U.S. District Judge Sharon Johnson Coleman assessed a sanction of $1 million to Rosenthal Collins (RCG) and granted defendant/counter-plaintiff Trading Technologies’ (TT) motion for evidentiary sanctions and default judgment.  Much of the reason was due to the actions of RCG’s agent, Walter Buist.  Here’s why:

  • During Buist’s deposition, he admitted to “turning back the clock” to change the “last modified” date on the previously modified source code to make it appear that the modifications had occurred much earlier.  Despite clear evidence of these facts, RCG continued to deny them, even calling the claims “libelous,” “audacious,” and “Oliver Stone-esque.”
  • Buist also later admitted “wiping” six of seven zip disks that originally contained the relevant source code.  While he did not admit wiping the seventh disk, it was also wiped, and the Court found that it was “impossible to believe that it is merely coincidence that the seventh disk happened to be wiped on May 2, 2006, which just happened to be the same day that TT was scheduled to inspect it.”
  • The Court found that here was evidence that “virtually every piece of media ordered produced by the Court in May 2007 and July 2008 was wiped, altered, or destroyed.”
  • Despite RCG’s (and its counsel’s) attempts to distance itself from “its own agent, employed for the purposes of pursuing this litigation” and disavowing any “actual knowledge” of wrongdoing, Buist was RCG’s agent and, therefore, RCG was bound by Buist’s behavior and actions.
  • Even if RCG and its counsel had no knowledge of the destruction of the evidence, the destruction might have been avoided if RCG had complied with the Court’s orders in a timely manner to produce the materials and/or preserved the evidence by taking custody of it.

So, what do you think?  Should parties and their counsel be liable for the actions of an agent on their behalf?  Please share any comments you might have or if you’d like to know more about a particular topic.