E-Discovery Sanctions May Be Entered and Have Consequences Long After Litigation Concludes

http://ow.ly/6Hv5a

An article by Jennifer A. Hradil published on the Gibbons E-Discovery Law Alert website.

This article discusses the case of Green v. Blitz U.S.A and uses it as an example of an instance where sanctions for eDiscovery violations can have long lasting impact, well beyond the one case they arose from.

As the article points out, "Over a year after the conclusion of the trial and entry of final judgment in Green, the court entered monetary and non-monetary sanctions against the defendant for its failure to adequately preserve and identify potentially relevant documents. Because the matter had closed, many of the non-monetary sanctions under Rule 37(b)(2) were not available. Accordingly, the court fashioned a creative non-monetary sanction requiring the defendant (1) to provide the sanctions opinion to all plaintiffs in any litigation against the defendant for the prior 2 years; and (2) to file the opinion with any court in any new lawsuit in which the defendant is a party for 5 years following entry of the opinion.

Like many opinions issuing sanctions for e-discovery violations, at first glance, Green appears to present somewhat extreme facts reflecting the defendant’s electronic discovery failures:

• The defendant’s employee charged with the collection of relevant information testified that he was computer illiterate;
• That employee did not perform any electronic search for emails or talk to the IT department in connection with his search;
• No litigation hold directive was given to employees; and
• Over the course of the relevant period, numerous emails were sent by the IT department instructing employees to delete old emails."

The article goes on to provide some guidance as to how to avoid sanctions, "While the facts giving rise to the defendant’s e-discovery failures seem extreme, Green provides valuable lessons for executing any e-discovery preservation and collection plan. For example, Green once again highlights the dangers of not having developed a litigation hold procedure and issuing an adequate litigation hold when appropriate. Likewise, while charging a computer illiterate employee with sole responsibility for discovery collection is an obvious gaffe, Greenshould nonetheless serve as a reminder that choosing appropriate personnel to work in conjunction with counsel is critical to a defensible collection plan. Finally, given the nature of the sanctions here, parties involved in repeated litigation should be aware that they could continue to face consequences from e-discovery violations even well after the conclusion of the litigation in which they occurred."

P.S.  As with many things in life, try to learn lessons through the mistakes of others, and do what you can to avoid making the same mistakes.