When it comes to the collection and preservation of electronically stored information (ESI) as evidence, attorneys should hesitate to simply take clients at their word. In a recent case, DR Distributors, LLC v. 21 Century Smoking, Inc., U.S. District Judge Johnston from the North District of Illinois issued his opinion in a memorandum opinion and order regarding the plaintiff’s request to impose sanctions for defendant’s ‘…spoliation of ESI, its failure to produce ESI in timely manner and other alleged misdeeds.’ In his remarks, Judge Johnston described a preventable series of ‘missteps, misdeeds and misrepresentations’ that compromised the entire case.
The case involved infringement claims over similar trademarks for electronic cigarettes and ended in severe sanctions against the defendant and their attorneys – including issue preclusion, adverse inferences, and reimbursing the plaintiff, DR Distributors, for its reasonable attorney fees and costs in addressing the discovery abuse. Interestingly, Judge Johnston issued some additional unique sanctions requiring some lawyers in the case complete at least eight hours of CLE on ESI along with certifying that they had read the entirety of the judge’s 256 page order.
The defendant lied to their attorneys about locations of case-relevant e-mails (leading to spoilation), failed to mention key sources, and presented false testimony, but Judge Johnston came down hardest on the lead counsel for their ignorance of eDiscovery knowledge and practices. The Court believed that if counsel observed “basic eDiscovery principles,” it would have been likely that all relevant ESI might have been disclosed and key communications may not have been spoliated.
To avoid similar situations with cases involving ESI, consider the following takeaways from this case.
- Attorneys should manage the entire eDiscovery process. There are dangers in letting clients direct the ESI identification and preservation processes. This is especially important when the custodian has an interest in the outcome of the case. Attorneys must re-direct clients who push to self-preserve ESI in an effort to control costs or limit what data is produced. Finding and introducing a strong eDiscovery partner or forensic investigator with the experience to allay client concern regarding cost and exposure can alleviate the challenges to uncover potentially relevant ESI.
- Attorneys must understand enough about ESI to be able to properly direct clients’ preservation needs. Most modern-day litigation involves ESI, making a basic understanding of eDiscovery increasingly vital. Lawyers should understand the nature of their client’s technology systems well enough to facilitate the preservation, collection, and production of materials. Any business with any sort of modern IT configuration is likely to have relevant data on multiple machines and in various locations – not on just a few custodians’ workstations, as was claimed by the defendants in this case. Counsel here should not have assumed that relevant ESI could only be found in the few locations the client disclosed.
- A proper legal hold process, the process that must occur to preserve data as evidence, is important to correctly identify key custodians and data points at an organization. Attorneys must inform clients of their obligations to preserve data that may be relevant to the case. The notification of those obligations needs to be acknowledged by the data custodians. It is advisable that attorneys develop a methodology for tracking those custodians’ acknowledgements, or partner with a provider or software solution that can assist.
Judge Johnston’s orders in this ruling drive home with stark, plain language that attorneys must have at least a working knowledge of eDiscovery basics. Part of knowing eDiscovery best practices is knowing when to engage outside professionals. These experts can help attorneys and their clients control the identification and preservation of relevant information so it can be properly collected, presented and defended in court.
LOGICFORCE specializes in carefully examining digital assets for case-relevant data. Our team of investigators understand both technology and the legal process and will find and preserve data in a defensible manner. For more information on properly discovering and preserving data pertinent to your case, or to learn about LOGICFORCE’s comprehensive eDiscovery offering, contact us.
Kyle Campbell is the Vice President of Litigation Support Services at Frontline Managed Services. He has nearly 20 years of experience in all facets of the industry, including eDiscovery software development, strategic business consulting with an emphasis on eDiscovery and litigation support and working in-house with law firms and e-discovery service providers.