Here at Practical Ediscovery, we are always on the lookout for decisions that bring a little bit of sanity to the crazy world of ediscovery. Therefore, we thought the Haynes decision was worth a mention. While Haynes involved the alleged failure to preserve paper records, not ESI or emails, the decision addressed a motion for sanctions which claimed that evidence was lost as a result of the alleged failure to impose a formal litigation hold at the onset of the case.

While a party has a duty to preserve potentially relevant information once litigation is “reasonably anticipated,” the court in Haynes, further explained that the duty to preserve potentially discoverable information does not require a party to retain every scrap of paper in its possession. In fact, the court acknowledged that the steps a party must take “to satisfy its obligation to preserve evidence may vary from case to case.” Significantly, the court in Haynes observed that while the failure to institute a litigation hold was a “relevant” consideration, it was “not per se evidence of sanctionable conduct.” The court observed that this case was one of many pending against the Sheriff’s Office, which runs the largest single site jail in the country, “and that the establishment of a formal litigation hold in every case could cause an undue burden.” Because of the “breadth of the plaintiffs’ claims and discovery requests,” the court in Haynes could not conclude “that the absence of a large-scale litigation hold was objectively unreasonable.” The court also found it significant that the lost evidence involved the handwritten notes of a jail superintendent and that there was “no evidence that relevant documents were destroyed pursuant to a routine destruction policy that defendants failed to curb.”

So, while Haynes is helpful, the decision does have its limits and should not be viewed as a “Get Out of Jail Free Card.” Obviously, the safest approach in any case is for the client to take reasonable steps to preserve potentially relevant information once litigation is reasonably anticipated. Decisions such as Haynes provide only a limited backstop, should a misstep occur.

Haynes bears mentioning for another reason. Various ediscovery decisions seemingly require an attorney to follow up and confirm that the client’s “key personnel” are aware of the litigation hold and are preserving potentially relevant ESI. Attorneys frequently ask how they can or should identify the key personnel to whom these decisions vaguely refer. After-the-fact criticisms always speak with the wisdom of 20-20 hindsight. The court in Haynes noted that the particular employee of the defendant whose notes were the subject of plaintiffs’ motion for sanctions had been listed in plaintiffs’ Rule 26(a)(1) initial disclosures as someone likely to have discoverable information. Therefore, the court concluded that the witness should have been instructed to preserve relevant information no later than the date of that initial disclosure. Accordingly, one common-sense approach to identifying the client’s “key personnel” is to work from the parties’ Rule 26(a)(1) disclosures. Occasionally, there may be other key employees, but in many, if not most instances, the witnesses listed in those initial disclosures will be the persons most likely to possess relevant information that should be preserved.

Today’s post demonstrates the importance of a document retention/destruction policy applicable to a company’s paper and electronic records that is consistently applied and routinely followed.

In Mohrmeyer, plaintiff sought discovery sanctions in the form of an adverse inference instruction because Wal-Mart failed to preserve certain records relevant to his accident. The particular record, a maintenance log, was not typically preserved in the ordinary course of the company’s business. It was routinely discarded on a weekly basis. Plaintiff noted that Wal-Mart employees attended to him immediately after his fall, called 911 and summoned an ambulance to take him to the hospital. As a result, the plaintiff in Mohrmeyer claimed that Wal-Mart’s duty to preserve all relevant documents was triggered immediately following his fall because Wal-Mart “should have known” that his accident would result in litigation.

Mohrmeyer is significant because the court recognized:

The law does not and should not require businesses to preserve any and all records that may be relevant to future litigation for any accidental injury, customer dispute, employment dispute, or any number of other possible circumstances that may give rise to a claim months or years in the future, and there is absolutely no contemporaneous indication that a claim is likely to result at the time the records are destroyed pursuant to a routine records management policy.

That Wal-Mart preserved some records relating to the plaintiff’s accident pursuant to its policy involving accidental injuries did not change the result in the court’s view because the particular maintenance log was only temporarily retained and was routinely discarded. Merely because Wal-Mart summoned an ambulance for the plaintiff did not make the litigation more likely to occur. The court found no deliberate or improper conduct by Wal-Mart involving its failure to preserve what the court described as a “transient record.”

The court recognized that a duty to preserve applies only when a party has been put on notice that evidence is relevant to pending litigation or which may be relevant to future litigation that is likely to occur. It concluded that at the time the maintenance log was discarded, there only existed a speculative possibility that a lawsuit might be brought. The court observed that before the log was destroyed Wal-Mart had received no telephonic or written warning from the plaintiff or his counsel raising the possibility of a lawsuit and there was no history of litigation between the parties which made a lawsuit more likely to occur. The court was not willing “to presuppose the likelihood of litigation for every slip and fall accident that occurs.”

The court in Mohrmeyer distinguished the factual scenario presented from an airline disaster where the “trigger date” for the preservation of evidence would clearly be the date of the disaster “because of the high likelihood of litigation following such [an event].” The mere fact that an accident had occurred was insufficient to establish that litigation was likely to ensue.

The court also noted that the plaintiff testified in his deposition that he did not even consider filing a lawsuit until a couple of months after the accident occurred, which was long after the maintenance records were destroyed in the ordinary course of the company’s business. This is a good practice point to remember in discovery in any matter where discovery sanctions potentially may be sought.

Accordingly, Mohrmeyer concluded that when evidence is destroyed pursuant to a company’s “routine, good-faith records management practices” before any notice of the likelihood of litigation is received, discovery sanctions of any type are not warranted.

Vitruvian Man image courtesy Flickr user Michael Licht under this Creative Commons license.

Today’s blog post is named after the 1967 epic spaghetti western starring Clint Eastwood. Wikipedia explains that the movie’s plot “centers around three gunslingers competing to find a fortune in buried confederate gold.” Intended by its director to be a “tongue-in-cheek satire on run-of-the-mill westerns,” Quintin Tarentino once called it “the best-directed film of all time.”

While that might be a bit of a stretch, The Good, The Bad and The Ugly aptly summarizes the court’s holding in Scalera v. Electrograph Systems. While you won’t find any confederate gold, bounty hunters or ghost towns in the decision, there are a number of important points that can be gleaned from the opinion. However, as with many ediscovery decisions, there are several bad, and at least one downright ugly finding entered by the court. Luckily, while the court concluded the company “unquestionably breached a duty to preserve emails,” the plaintiff failed to establish that any of the destroyed emails would have been favorable to her claim and, thus, the court denied plaintiff’s request for an adverse inference instruction. As a result, on several levels, Scalera is a decision that merits your attention.

Setting the Scene.

The plaintiff in Scalera suffered from Pompe disease which causes severe muscle weakness and results in limited mobility. Following her termination, plaintiff filed an ADA claim against her former employer alleging that it failed to accommodate her disability by not installing a handrail at its side door, which was the only entrance plaintiff could use to enter or exit the building due to her medical condition. Plaintiff alleged that due to the absence of a handrail, she fell while exiting the building which aggravated her condition. The company disputed whether plaintiff ever requested the installation of a handrail at its side entrance. The company argued that any request for an accommodation would come to its Human Resource (“HR”) department, where all documents relating to a person’s employment, disability, workplace accidents, requested accommodations and termination would be filed. All materials and emails received by the HR department were printed and placed in an employee’s file. All documents in an employee’s personnel file were scanned into a computer file. Both plaintiff’s HR file and electronic records were produced to her.

In discovery, plaintiff sought all emails sent or received by any employee concerning her medical condition, her request or need for an accommodation or which predated her employment with the company. The company produced “a handful of emails that were stored on backup tapes” and none of plaintiff’s emails to the company which predated her employment. The company explained that its backup tapes became corrupted and could not be restored. As a result, plaintiff filed a motion for sanctions seeking the issuance of an adverse inference, claiming the company failed to timely institute a litigation hold and preserve evidence under its control.

In response, the company submitted the affidavit of a Support Manager of its IT department which explained that documents can be stored locally on the hard drives of individual computers which may or may not be backed up depending on whether the document was created and stored on the network or locally at an employee’s computer. Because company computers were not tagged or catalogued, it was not possible to track a specific computer to any former employee. Additionally, once an employee left the company, all data on the employee’s computer was wiped from it. For company executives, this occurred within 30 days of their last day of employment and for non-executives, data on the hard drive was removed immediately. As a result, after the plaintiff was terminated, her computer’s hard drive was immediately wiped of all data. The company’s HR Director retired two months after plaintiff filed her EEOC charge and the hard drive of the Director’s computer was also wiped pursuant to company policy, making it impossible to search those hard drives for emails from the plaintiff.

The company also submitted the affidavit of its General Counsel who explained that she instructed several employees who dealt with the plaintiff to retain any relevant documents. She also collected copies of documents from the company’s HR department, and was told that all documents and emails were backed up. The affidavit explained that because the company did not have a document destruction policy, and knowing that its systems were backed up, the General Counsel was confident that all necessary documents had been properly preserved.

The Good (il buono) – When the duty to preserve was triggered.

Plaintiff raised several arguments as to when the duty to preserve was triggered, most of which the court in Scalera rejected. Plaintiff initially claimed that because the company knew she was disabled when it hired her, it had a duty from the outset of her employment to preserve information about her, and her accommodation requests. Plaintiff pointed to the Second Circuit’s decision in Brady v. Wal-Mart Stores, Inc., 531 F.3d. 127, 135 (2d Cir. 2008), which held that an employer has a duty to accommodate an employee’s disability if the disability was obvious. Simply because a request for an accommodation may not be a prerequisite for to ADA liability in certain instances does not impact when a duty to preserve information is triggered. They are separate issues and would require an employer to anticipate it would be involved in litigation whenever it hires an employee who may be disabled. In the court’s view, the logic of such an argument went “beyond the boundary of reasonableness.”

The court in Scalera also rejected the plaintiff’s argument that the filing of a worker’s compensation claim triggered a duty to preserve. While the court rejected plaintiff’s exclusive remedy argument because the exclusive remedy provision of the State of New York’s worker’s compensation law did not preclude the filing of a federal disability claim, it concluded that there was nothing in the plaintiff’s worker’s compensation claim that should have put her employer on notice that she would file a federal disability lawsuit against it.

The plaintiff sent a pre-suit letter to the building’s landlord after her fall, asserting negligence and making a claim for injuries. The court in Scalera concluded that letter did not trigger a duty to preserve by her employer because it was directed to the landlord and not the defendant.

Federal regulations implementing the ADA require employers to preserve any personnel or employment records, including accommodation requests, for one year from the date of making the record or the personal action involved, whichever occurs later. See 29 CFR §1602.14. Where an employee has been involuntarily terminated, the regulation requires an employer to retain the employee’s personnel records for one year from the date of termination. Where a charge of discrimination has been filed under Title VII or the ADA, an employer is obligated to preserve all personnel records relevant to the charge until the final disposition of the action. Scalera cited Byrnie v. Town of Cromwell, 243 F.3d 93, 109 (2d Cir. 2001) for the proposition that where a party violates an EEOC record-retention regulation, that violation can justify a finding of spoliation. The court in Scalera noted it was unclear from the record whether the plaintiff’s alleged request for the installation of a handrail was made in writing. The court concluded, however, that to the extent documents evidencing such a request ever existed, they should have been preserved for a period of one year from the date the accommodation was requested.

The company acknowledged receiving plaintiff’s EEOC charge in either late November or early December of 2006. Because the plaintiff’s hard drive was erased within thirty (30) days of her employment being terminated, no duty to preserve was triggered since the EEOC charge was not received until after that hard drive had been erased.

Plaintiff produced several emails that she sent to the company before she began her employment which requested certain accommodations, and argued that the company’s failure to produce them established that they had not properly preserved relevant electronic information. While rejecting the company’s argument that it had no obligation to preserve those emails because they were created before plaintiff’s employment began, the court noted that the ADA regulation only required that they be kept for one year, and the obligation to preserve them expired before plaintiff filed her EEOC charge. Therefore, the court ruled that defendants had not breached any duty by failing to preserve the specific emails plaintiff had sent to the company.

The Bad (il bruto) – Failing to interrupt routine destruction practices.

As noted above, the company had a practice of wiping the hard drives of departing employees. While that practice was fine for those employees who had no involvement with plaintiff, the company failed to interrupt it once a duty to preserve was triggered. The court in Scalera concluded that in addition to the ADA record retention regulation, a duty to preserve was triggered by the filing of plaintiff’s EEOC charge. Therefore, the company should have prevented the hard drive of the computer used by HR Director from being erased because she retired at least a month or two after the company had received plaintiff’s EEOC charge. The court ruled because the company failed to preserve the emails and documents contained on that computer, it breached its duty to preserve. The court rejected the company’s argument that it did not breach any duty because it produced all relevant documents from plaintiff’s HR file. Citing Treppel v. Biovail Corp., the court noted that a party is not permitted to downgrade electronic data to a less accessible form which makes the recovery of information more costly and burdensome, and doing so constitutes a violation of its preservation obligation.

The Ugly (il cattivo) – Failing to properly institute and communicate a litigation hold.

The court in Scalera concluded that no formal litigation hold was ever implemented. Moreover, it concluded that no steps were taken to preserve information until almost two months after the EEOC charge was filed. The court also noted that there was inadequate communication between the company’s General Counsel and its IT department. While the IT department searched the hard drives of several employees to see if information was stored locally on those drives, not all of the key employees who the General Counsel advised to preserve information had their computer hard drives searched. More importantly, the IT department failed to preserve information stored on the computer of the HR Director after she retired. The court found the company’s conduct was negligent and that information was lost as result of its “omissions and ineffective communication.”

Why an adverse inference was not imposed.

In order to obtain sanctions for the spoliation of evidence, the party seeking those sanctions must demonstrate the destroyed evidence was relevant to her claims. The court in Scalera noted that when an adverse inference is sought, relevance requires “something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.” The court also noted that a party’s bad faith or gross negligence will typically support a finding of relevance. Here, it ruled that company’s total reliance on its backup tapes was shortsighted. While a formal litigation hold was never issued, the General Counsel did advise key players to preserve information. Admittedly, while more effective communication with the IT department may have prevented the loss of information, some steps were taken to preserve information. Thus, the court concluded that while the company’s conduct was negligent, it did not rise to the egregious level needed to establish relevance as a matter of law. And because plaintiff failed to produce extrinsic evidence demonstrating the destroyed emails would have been favorable to her case, the court denied plaintiff’s request for sanctions in the form of an adverse inference.

One critic’s review – the performance does not warrant two thumbs up.

The company in Scalera dodged a bullet. The Seventh Circuit has explained that the distinction between negligent conduct and gross negligence is so narrow that it cannot be adequately defined. See, e.g., Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir. 1988) (en banc). Given the slight degree of variation between negligence and gross negligence, a different judge when presented with a similar factual scenario might conclude the loss of information merited an adverse inference or imposed some lesser form of sanctions. Additionally, while the motion was denied, think of the time, expense, resources and effort that were expended to defeat the motion which potentially could have been avoided.

Scalera demonstrates that a close working relationship between a company’s General Counsel and its IT Department is essential to the avoidance of ediscovery sanctions. Additionally, the decision once again shows that a prudent course to follow in any regulatory, investigative or litigated matter is to impose a formal litigation hold at the outset. A party should endeavor to identify its key personnel who may have relevant information and notify them -preferably in writing – of the duty to preserve. This should include a company’s IT department. A company should notify its IT department about any litigation hold so that any automated or automatic process, such as the erasure of departing employee’s hard drives, can be interrupted and potentially relevant information preserved. The company should advise its IT department who the key players involved in the litigation hold are and the nature of the information that should be preserved. IT should be made part of the hold process, and Scalera demonstrates how potentially relevant information can be lost when they are not made full active participants in the process.

Near the end of the year, various commentators and bloggers will typically post their list of top ediscovery decisions for the year. While it may be a bit early for predictions, one decision that should make everyone’s top ten list this year is Goodman v. Praxair Services. The decision was written by Judge Paul Grimm who also was the author of the Hopson, Victor Stanley and Mancia decisions. Judge Grimm always seems to be on the leading edge of ediscovery issues.

Praxair is notable for its comprehensive treatment of issues that frequently arise involving the preservation of electronically stored information (“ESI”) and sanctions that can result for the failure to do so. The decision contains more ediscovery law than many book chapters on the topic. Even the most experienced ediscovery practitioner will find some helpful insights in the decision. If there is one ediscovery decision you read this year, Praxair should be the one. The issues addressed by Judge Grimm in Praxair include:

• The trigger date for a duty to preserve
• The timeliness of a spoliation motion.
• Identifying the “key players” to whom the litigation hold should be directed.
• Determining what ESI is under a party’s control.
• Distinguishing the duty to preserve from the duty to produce.
• Ediscovery and small “mom and pop” companies.
• Whether sanctions can be imposed for the spoliation of evidence by an agent.
• State of mind required for spoliation sanctions.
• Four scenarios when costs and attorney fees are allowed.
• Sanctions for unilaterally preserving only the ESI that a party deems relevant.

Judge Grimm even traces the “historic roots” of spoliation to Armory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1722), which he describes as a Dickensian tale of avarice and greed involving a chimney sweep’s discovery of a jewel and a goldsmith’s subsequent attempt to keep it for himself. Because of Judge Grimm’s comprehensive treatment of the issues noted above, we have divided our review and commentary on Praxair into multiple parts that will appear over the next few days on Practical Ediscovery. This first part outlines Praxair’s factual background and addresses when a duty to preserve is triggered.

Factual background

Tracer developed a patented technological process for detecting fuel container leaks involving the injection of chemical “tracers” into containers. The company learned that that several of its chemical tracers could be subject to the Clean Air Act’s testing requirements. After learning the cost of that testing could exceed a million dollars, the company began seeking ways to exempt its tracers from those testing requirements.

Plaintiff was hired to work on securing those exemptions. Tracer’s CEO entered into the contract with plaintiff, which called for the payment of a set fee for any tracer exempted from testing through his negotiations with the EPA, the payment of a separate fee for the performance of a package of services and the payment of a success fee if plaintiff was able to remove the tracers from certain waiver requirements of the Clean Air Act.

Plaintiff submitted material to the EPA and met with EPA officials but was unsuccessful in obtaining the exemption. Tracer agreed that plaintiff had performed the package of services specified in their contract and paid plaintiff his fee for those services. Tracer and plaintiff then agreed to revise their strategic approach and plaintiff began working with an attorney to develop legal arguments to bolster their position. Tracer’s CEO subsequently advised the plaintiff to have no further contact with the EPA until he had refined a “complete strategy” on exempting the tracers. Separately, Tracer retained an attorney (Gade) who formerly worked with the EPA, and at that attorney’s suggestion contacted two consultants (Wilson and Himmelstein) who had previously worked for the EPA.

Because of extended delays, plaintiff sought a $20,000 advance on his success fee. Tracer’s CEO advised plaintiff in an email that she was willing to modify their contract to advance a payment, but also informed him that they needed to rework their contract if it turned out that Gade was primarily responsible for achieving success with the EPA. Plaintiff responded that he regarded Gade as a partner in their EPA efforts and viewed her participation as “an additional asset to lower the risk of failure.” In a subsequent email, Tracer’s CEO agreed to the advance and again commented on the need to modify the contract to allow for the partial payment. However, the parties never formally modified their agreement.

The consultants retained by Tracer subsequently met with EPA’s representatives without the plaintiff and ultimately convinced the EPA that testing wasn’t required. Tracer’s CEO advised plaintiff that he was not responsible for the project’s success and would not pay him any remaining portion of the success fee. Tracer offered to let plaintiff retain the $20,000 advance in exchange of a release of all claims. Plaintiff rejected the offer and sent a series of letters to Tracer’s CEO demanding full payment and threatening to retain legal counsel.

Tracer’s CEO also sought legal counsel and on February 19, 2001, its CEO instituted her own litigation hold, no longer deleting emails that she received. Prior to that time, the CEO would typically delete her emails after reading them, but would print and file any email she thought relevant. Further complicating matters, Tracer’s CEO typically saved documents locally a laptop computer’s hard drive and not onto Tracer’s servers. Unfortunately, Tracer’s counsel never instructed Tracer to impose a formal litigation hold, and none of Tracer’s employees or consultants, other than its CEO, implemented a hold.

In October of 2002, Tracer was acquired by Praxair Services, Inc. and its IT infrastructure was transferred to the Praxair system. During the transition process, Tracer computers were replaced with Praxair computers. Once the new computers were installed, data saved on the old Tracer computers was not transferred to the new ones unless requested by an employee. The laptop used by Tracer’s CEO was reimaged, given to a different employee and ultimately replaced in the normal course of business. Tracer’s email systems were converted to Praxair’s system and taken off line. Emails from Tracer’s old system that were not deleted in the ordinary course of business were retained on backup tapes for disaster recovery purposes. It was subsequently determined that Tracer had 280 and backup tapes that were not labeled or marked in any way.

On February 13, 2004, plaintiff filed a breach of contract action. Five months after the close of discovery, plaintiff brought a motion seeking sanctions for spoliation claiming that emails and electronic information relevant to his claim had not been preserved.

The trigger date for imposing a litigation hold

A duty to preserve ESI can be triggered long before a lawsuit is ever filed. However, as we noted in a prior blog post, a “general concern” over the potential for litigation does not trigger a duty to preserve evidence. A theoretical threat of litigation or a general apprehension of a lawsuit being filed does not suffice. Rather, the duty to preserve is not triggered until a specific claim is identified and made or future litigation becomes probable. Praxair further explains “[t]he mere existence of a dispute does not necessarily mean that the party should reasonably anticipate litigation or that a duty to preserve arises.” 632 F.Supp.2d at 510.

Prefiling communication between parties can trigger a duty to preserve. However, Praxair explained that pre-filing correspondence which merely identifies a dispute and “expresses an invitation to discuss or otherwise negotiate” does not trigger such a duty. 632 F.Supp. at 511, citing Cache LaPoudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 622 (D. Colo. 2007) (addressing a presuit letter asking if a party was willing to “determine whether the situation [could] be resolved without litigation and media exposure”). Because the plaintiff’s letter in Praxair openly threatened litigation, Judge Grimm concluded that the defendant was on notice at that point that litigation was reasonably foreseeable triggering a duty to preserve.

While this distinction is easily recognizable at the outer edges, in many instances it may prove quite difficult to apply. Attempting to distinguish an “open threat” to sue from “an invitation to resolve” potential litigation can involve an exercise in “hair splitting.” The Sedona Conference has issued a Commentary on Legal Holds which attempts to provide additional guidance. In Guideline 4 of that Commentary, Sedona identifies a series of factors pertinent to the issue of whether litigation should be reasonably anticipated. They include:

• The nature and specificity of the complaint or threat;
• The party making the claim;
• The position of the party making the claim;
• The business relationship between the accused and the accusing party;
• Whether the threat is direct, implied or inferred;
• Whether the party making the claim is known to be aggressive or litigious;
• Whether a party who could assert a claim is aware of the claim;
• The strength, scope and value of a potential claim;
• The likelihood that data relating to a claim will be lost or destroyed;
• The significance of the data to the known or reasonably anticipated issues;
• Whether the company has learned of similar claims;
• The experience of the industry;
• Whether the relevant records are being retained for some other reason; and
• Press and/or industry coverage of the issue directly pertaining to the client, or of complaints brought against someone similarly situated in the industry.

The Sedona Commentary further explains that this list of factors should not be viewed as exhaustive and that “other considerations must be weighed reasonably in good faith” in your analysis of whether litigation should be reasonably anticipated. In baseball, “ties go to the runner.” Given the potential ramifications that the failure to impose a litigation hold can have, in a close case, a party should always consider instituting a litigation hold.

A series of Principles Relating to the Discovery of Electronically Stored Information (“ESI”) were developed and codified in a standing order. These principles are intended to serve as supplemental procedural ediscovery guidelines for the parties in selected cases. Individual district court, magistrate, and bankruptcy judges in the Seventh Circuit have agreed to adopt the principles and implement them in selected cases during Phase I of the program, which runs through May 1, 2010.

Kenneth J. Winters, the Managing Director of the Sedona Conference®, and former Colorado Supreme Court Judge Rebecca Kourlis, the Executive Director of the Institute for Advancement of the American Legal System (“IAALS”) at the University of Denver, assisted in the development and review of these principles.

IAALS is developing questionnaires to assess the efficacy of the principles. The questionnaires will be completed by the judges and lawyers participating in Phase I of the program. The results of the IAALS’ questionnaires will be presented to the Seventh Circuit at its annual meeting in May, 2010. At that time, the program’s ediscovery principles will be reviewed and refined as needed. Phase II of the program is scheduled to proceed from June, 2010 through May, 2011. It is contemplated that in May, 2011, Phase II findings will be presented and the Seventh Circuit’s final ediscovery principles announced.

Among other things, the principles require in the event of a dispute during the meet and confer process, the appointment of an ediscovery liaison who should be prepared to participate in ediscovery dispute resolution. These principles also recognize that that Rule 26(b)(2)(C)’s proportionality principles should be applied when formulating a discovery plan; provide that sanctions can be imposed for the failure to cooperate and participate in good faith in the meet and confer process; identify categories of ESI, which are generally not discoverable in most cases; and provides that if a party intends to request the preservation or production of these categories of ESI, that such a request be discussed at the parties’ initial meet and confer session or as soon thereafter as practicable.

Some of the other noteworthy aspects of the Seventh Circuit’s principles include:

• Acknowledging Fed. R. Civ. P. 1’s forgotten role in ediscovery by providing the purpose of these principles is to assist courts in the administration of the Rule’s requirement of securing “the just, speedy, and inexpensive determination of every action and proceeding.”
• Recognizing that an attorney’s ethical duty of zealous representation is not compromised by conducting discovery in a cooperative manner.
• Specifying that Rule 26(b)(2)(C)’s proportionality standard should be applied when formulating a discovery plan, meaning that requests for production and responses thereto “should be reasonably targeted, clear and as specific as practicable.”
• Noting that ESI disputes will be resolved more efficiently if before the initial conference with opposing counsel, the attorneys for each party review and understand how their client’s data is stored and retrieved in order to determine what issues must be addressed during their initial meet and confer discussions.
• Authorizing a court to require additional discussions prior to the commencement of discovery and/or to impose sanctions where appropriate on any party or counsel that fails to cooperate and participate in good faith in the meet and confer process.
• Requiring in the event of a dispute concerning the preservation or production of ESI, the designation of an ediscovery liaison for the purposes of meeting, conferring, and attending court hearings.
• Providing the ediscovery liaison may be an in-house or outside counsel, a third-party consultant, or an employee of a party.
• Specifying the ediscovery liaison must be prepared to participate in ediscovery dispute resolution; know the parties’ ediscovery efforts; and have access to those who are familiar with the parties’ electronic systems and capabilities in order to explain those systems and answer relevant questions. The ediscovery liaison must also have reasonable access to those who are knowledgeable about technical aspects of ediscovery.
• Providing that vague and overly broad preservation orders should not be sought or entered and noting that the information sought to be preserved through a preservation letter or court order should be reasonable in scope and mindful of Rule 26(b)(2)(C)’s proportionality factors.
• Explaining that if the recipient of a preservation letter chooses to respond, the response should provide useful information regarding the preservation efforts undertaken by the responding party. Examples of useful and specific information for such a response include the information a responding party is willing to preserve, the steps taken in response to any preservation letter, any disagreements with the preservation request, and any further preservation issues that were not raised.
• Mandating that every party and its counsel are responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody, and control.
• Recognizing that discovery concerning another party’s preservation and collection efforts may be appropriate, but noting that if used inadvisably, can cause unnecessary expense, delay, and may unnecessarily implicate work product and attorney-client privilege. Requires that prior to initiating such discovery, the parties are expected to meet and confer concerning its need and the suitability of alternative means for obtaining that information. Acknowledges this requirement does not preclude deponents addressing the merits of the case from answering questions concerning the steps taken to preserve and collect ESI.
• Specifying that certain categories of ESI are considered generally “not discoverable” in most cases and requiring a party that intends to request the preservation of production of those categories of ESI, discuss that discovery request at the parties’ initial meet and confer session, or as soon as practical thereafter.
• Identifying categories of ESI that are generally not discoverable to include: (a) deleted, fragmented, unallocated data, or data found in the slack space of computer hard drives; (b) random access memory (RAM) or other ephemeral data; (c) temporary internet files, history, cache, cookies, and other forms of on-line access data; (d) data in metadata fields that are frequently updated automatically such as last-open dates; (e) backup data that is substantially duplicative of data that is more accessible elsewhere; and (f) other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business.
• Requiring in the event of a dispute concerning the scope of a party’s preservation efforts that counsel meet and confer and fully explain their reasons for believing that additional efforts are not reasonable or appropriate.
• Encouraging parties, at their initial Rule 26(f) conference, to discuss ways to eliminate duplicative ESI, including horizontal or vertical deduplication, the filtering of data by date ranges, file types, custodians as well as the use of search terms, keyword searching, concept clustering, or other advanced methodologies.
• Providing that ESI or other tangible or hard copy documents, which are not text searchable, need not be made text searchable when produced.
• Recognizing the requesting party is responsible for the incremental cost of creating its copy of any requested information.
• Encouraging parties to discuss cost sharing for optical character recognition (OCR) or other upgrades of paper documents or other forms of non-text-searchable ESI.
• Noting that ESI stored in a database or a database management system can be produced by querying the database for discoverable information resulting in a report or a reasonably useable exportable electronic file for review by the requesting party or its counsel.

Several years ago, in an article to the members of the Illinois Association of Defense Trial Counsel, I wrote that if left unchecked, the cost of electronic discovery will prove to be the biggest single threat to our civil jury trial system. Only time will tell whether these steps will fulfill their purpose of streamlining ediscovery and reducing the cost of federal-court litigation or whether a more “radical” step such as some form of mandatory cost as under the Texas rules will be required.

Pilot photo courtesy of Flickr user UNC – CFC – USFK under this Creative Commons license.

In Kotakis, plaintiff filed a Title VII claim asserting she was subjected to discrimination and retaliation because of her gender. The defendant moved for summary judgment, and plaintiff argued that a genuine issue of material fact was triggered because the defendant failed to take steps to preserve its electronically stored information (“ESI”) until nearly eleven (11) months after receiving notice of the litigation.

The district court quickly disposed of plaintiff’s argument. It observed that following Lujan v. National Wildlife Fed’n., 497 U.S. 871, 888 (1990), the party opposing summary judgment must proffer specific evidence found in the record which demonstrates the existence of a genuine factual dispute on a material issue which requires resolution by a jury. The district court in Kotakis held no question of material fact was presented by the plaintiff, and entered summary judgment in defendant’s favor.

In a footnote, the district court acknowledged plaintiff’s argument that the defendant failed to timely issue a litigation hold, but noted a recent decision, Phillips v. Potter, 2009 WL 1362049, *4-6 (W.D.Pa. May 14, 2009), which ruled that sanctions were inappropriate even though the defendant failed to timely issue a litigation hold when “there was no evidence that relevant documents were destroyed.” The district court in Kotakis found the logic of Potter persuasive, and applied its rationale in rejecting plaintiff’s summary judgment argument. Kotakis, 2009 WL 185027 at *4, n.2.

Thus, when a party opposing summary judgment fails to establish that potentially relevant ESI was lost due to a failure to timely institute a litigation hold, the mere fact that the moving party failed to timely take the necessary procedures to preserve ESI does not, in and of itself, provide a basis to deny the entry of summary judgment.

This isn't Mrs. McClendon

In Green v. McClendon, the court ordered that sanctions be entered against Mrs. McClendon and her counsel for the failure to preserve certain electronically stored information (“ESI”) about an Excel spreadsheet that she produced in discovery. The ESI was lost when “the son of a friend” who was “familiar with computers” reinstalled the operating system on her home computer. The court in Green was uncertain if the plaintiff had actually been deprived of any information because all files on the defendant’s home computer were downloaded onto discs before the hard drive on the computer was reinstalled, and those discs were subsequently produced in discovery. Nonetheless, the court ordered that sanctions be entered, and in the process fashioned an order that may have spawned a potential conflict of interest for defendant and her counsel.

One of the criticisms of ediscovery is that it has evolved into a tactical game of “gotcha,” where one of the goals is to shift the focus from the merits of the case to sanctions on the opposing party. The court’s opinion in Green suggests that trend has not abated. Unfortunately, in a zeal to protect all things digital, the court in Green assumed either that a litigation hold was not properly issued or that the client “brazenly” disregarded those instructions. The court apparently never considered whether the client may not have known or failed to realize that the reinstallation of her home computer’s hard drive would result in the loss of electronic information under the circumstances.

An issue simmering beneath the surface of Green is how detailed must a lawyers’ litigation hold instructions be in order to comply with the attorney’s ethical and professional duties? Does the applicable standard of care require that lawyers now specifically advise their clients to not reinstall the hard drives on their home computers? If so, given the myriad of technological ways ESI can be lost, must a lawyer’s litigation hold letters be written by an IT professional? It is the client’s obligation to preserve evidence not the lawyer’s responsibility. As litigation-hold letters become longer and more detailed, how likely is it that they will be read, understood and followed by the client?

The defendants in Green were a New York couple who committed to purchasing a piece of art for $4.2 million dollars from the plaintiff, a London-based art dealer. After making an initial payment of $500,000, the couple experienced marital problems which resulted in a separation in anticipation of a divorce. They never paid the balance due and never took possession of the art. Plaintiff subsequently filed suit asserting claims of breach of contract and promissory estoppel.

Several months after responding to plaintiff’s discovery requests, Mrs. McClendon produced an Excel spreadsheet in written form apparently created on her home computer which referenced various pieces of art including the artwork involved the lawsuit. Plaintiff requested information about the spreadsheet including the date it was created, modified and the names of anyone involved in its creation or modification. Mrs. McClendon produced three additional electronic versions of the spreadsheet which varied from the original, along with a partial electronic history for each. No further ESI could be provided about the spreadsheet because “the son of a friend” reinstalled the operating system for Mrs. McClendon’s home computer. That caused the loss of the electronic information stored on the computer prior to the reinstallation process. However, files from the computer were downloaded onto discs prior to that reinstallation, which were produced to the plaintiff.

Court Assumes Litigation Hold Instructions Were Not Provided.

Admittedly, the court in Green may have been aware of facts or information not mentioned in its opinion which influenced its decision. However, the court in Green apparently assumed that counsel failed to meet his discovery obligations. This is evident from the court’s conclusion that “[u]nless [the defendant] “brazenly ignored her attorney’s instructions, counsel apparently neglected to explain to her what types of information would be relevant and failed to institute a litigation hold to protect relevant information from destruction.”

Thus, without knowing what if any litigation-hold instructions were provided to the client by her counsel, with “little insight into the precise circumstances under which the electronic information was destroyed” and despite being “uncertain whether the plaintiff ha[d] actually been deprived of any information” since “all of the files previously contained on [the computer’s] hard drive were purportedly transferred to CDs” which were ultimately produced in discovery, the court in Green nonetheless entered sanctions against both the client and her counsel.

How Detailed Must Litigation Hold Instructions be to Comply With the Standard of Care?

Green prompts the question of how detailed a litigation-hold letter must be to comply with a lawyer’s professional and ethical duties? Do your litigation-hold letters specifically instruct clients not to reinstall the operating systems of their personal or work computers? More importantly should they? These questions should not be confused with a lawyer’s ethical duty of competence under Model Rule 1.1, which requires that an attorney possess the knowledge and skills “reasonably necessary for the representation.”

Have we reached the point in the digital litigation era where lawyers must now advise their clients as to every conceivable technological way that ESI may be lost, and instruct clients not to take any such action without first contacting them? For instance, ESI can be lost as the result of a computer virus – in fact, that is frequently why operating systems need to be reinstalled on home computers. In order to comply with applicable ethical and professional duties, must a lawyer advise the client to maintain the latest version of virus-protection software? Is the lawyer at risk of having sanctions imposed if he fails to so advise the client and ESI is lost? Before answering the question, remember that installing new software can also trigger the loss of ESI. So what advice is legally or ethically required? Rules of Professional Conduct arguably do not require that lawyers be experts in the use of technology.

Merely turning on or off a computer can cause the loss of ESI, but no one would suggest that the standard of care requires that a client be advised that every company computer where potentially relevant ESI may be found must be taken out of service to harvest that ESI or that a forensic image of the hard drive be made before it can be reused. The mere loss of ESI does not necessarily established that a lawyer violated his professional or ethical duties, yet arguably, that appears to be the basis for the sanctions order in Green. These examples are intended to be provocative, because far too little thought or discussion has been devoted to the issues raised in this post.

Is an instruction to take no action with a computer that could result in the loss or deletion of ESI legally and ethically sufficient hold advice? If not, should lawyers now as a matter of routine consult with IT professionals and should their litigation hold letters now be written by IT professionals rather than counsel? Do more detailed instructions have to be provided to clients who may not be technologically savvy or to small businesses who may not have IT departments? Does the standard of care vary, given the nature of the client being represented? If so, how is a lawyer supposed to gauge the level of a client’s technological expertise?

Getting back to the original purpose of litigation hold letters, how likely is it that clients will read, understand and follow a lengthy and technologically detailed litigation hold letter? While from a risk management perspective, lawyers may feel compelled to make their hold letters longer and more detailed, as those hold letters grow longer and technologically more detailed, do they actually become counter productive? And is a lawyer’s litigation hold letter potentially creating evidence that can be used against the client in this context?

Is it time to reexamine the scope of the lawyer’s duty under Zubulake? In the Seventh Circuit, district court decisions are not considered precedential. See Futuresource, LLC v. Reuters, Ltd., 312 F.3d 281, 283 (7th Cir. 2002) (“The reasoning of district judges is of course entitled to respect, but the decision of a district judge cannot be controlling precedent”). However, courts follow Zubulake as a matter of routine without ever critically considering, whether on balance, the decision “got it right” or should be followed in light of the potential conflicts it arguably (some would argue inevitably) triggers between the attorney and client.

Potential Conflict of Interest Arguably Triggered by the Court’s Sanctions Order.

A troubling aspect of the court’s decision in Green is its proposed method for allocating fault in its sanction order. The court ordered that the defendant be re-deposed and permitted any person involved in the creation or modification of the spreadsheet also be deposed in order to determine if anything was actually lost. Following the completion of that discovery, the court directed plaintiff’s counsel to submit a fee application. Because the court could not currently ascertain the “respective blameworthiness” of the defendant and her counsel, the court indicated that after amount of the monetary sanctions was determined, it would afford Mrs. McClendon and her attorney “the opportunity to agree on an appropriate allocation or present this issue to me for determination.”

Such an order puts counsel in an untenable position. Unless both the attorney and client immediately agree that one of them is at fault, they are arguably potentially adverse to one another, and when adversity exists, the attorney has an ethical obligation to advise the client of her right to seek separate counsel at that juncture. For instance, the client in Green may have received a hold letter from the attorney but did not realize that reinstalling the computer’s operating system would result in the loss of ESI. In that scenario, would it not be in the client’s best interests to take the position that her lawyer should have advised her about that possibility? Wouldn’t the lawyer want to take the position that his advice was reasonable and appropriate under the circumstances or that he didn’t know about the clients’ plans?

Do both the attorney and the client need separate counsel from this point on if they can’t agree on who is at fault or their respective percentages of blameworthiness? Can a lawyer ethically negotiate with a client who is not represented by separate counsel how to divide up such a sanctions award? Ultimately, how can the court resolve the respective blameworthiness of the attorney and client without trampling the privilege that would otherwise exist as to their communications?

In the end, if the plaintiff was not deprived of any information, and if the defendant was not given an unfair evidentiary advantage, is the potential damage to the legal system and to the attorney-client privilege caused by the court’s sanctions order in Green under these circumstances worth it?

Can a Variation of the Mt. Healthy Rule on Damage Causation be Applied in this Scenario?

Even if no litigation-hold instructions were provided by counsel in Green as the court apparently assumed, a legitimate inquiry is whether the issuance of reasonable litigation hold instructions would have prevented the purported loss of ESI in this instance. In Green, the client was not a sophisticated IT professional. Otherwise she would not have had the son of a friend reinstall her home computer’s operating system.

The record is silent as to whether the defendant was aware that the reinstallation of a computer’s operating system would result in the loss of any ESI, once all files on the hard drive were loaded onto CDs. The opinion in Green also fails to mention whether the client ever called her attorney to let him know that she may need to have her home computer’s hard drive reinstalled. If a reasonable standard arguably does not require that the lawyer specifically advise the client to not reinstall the hard drive on a home computer, and if the client was not aware that ESI could be lost by the reinstallation of her computer’s hard drive, then one must question what damage resulted from the purported failure to provide the litigation hold instructions, if in fact they were not provided?

In Carey v. Piphus, 435 U.S. 247 (1978), the Supreme Court adopted the so-called Mt. Healthy rule on damage causation. Under this doctrine, if a defendant can demonstrate that the same result would have occurred absent the constitutional violation, a plaintiff is not permitted to recover damages because the plaintiff cannot establish that the constitutional violation was the cause in fact of any damages. Here, if a properly issued litigation hold instructions would not have advised the client to avoid reinstalling the hard drive of her computer, than the rationale of the Mt. Healthy rule would seemingly be in play.

Given the current economic climate, many retailers are offering two-for-one specials to boost sales. That same approach is warranted with this post since both the Select Portfolio and Lockheed Martin decisions address the same topic – Rule 26(c) Motions to Stay Discovery.

Under Rule 26(c), a court enjoys the discretion to stay discovery “for good cause.” In Landis v. North American Co., 299 U.S. 248, 254-55 (1936), the Supreme Court held that a motion to stay discovery pending determination of a dispositive motion is an appropriate exercise of a court’s discretion.

The district court in Select Portfolio explained that the factors relevant to a court’s determination of “good cause” under Rule 26 include:

• the pendency of dispositive motions, potential prejudice to the party opposing the stay,
• the breadth of discovery sought, and
• the burden that would be imposed on the parties responding to the proposed discovery.

In Lockheed Martin, the court noted that “a case-by-case analysis is required because such an inquiry is necessarily fact-specific and depends on the particular circumstances and posture of each case.” The plaintiff in Lockheed Martin sought to conduct extensive discovery that would result in undue burden and expense to all parties. The court ruled that a discovery stay under Rule 26(c) was appropriate because the defendant had a likelihood of prevailing on its pending motion to dismiss and no party would suffer substantial harm by a stay pending the court’s ruling on that motion.

In Select Portfolio, the party that had obtained the stay (and was opposed to lifting that stay) provided an affidavit showing that it implemented a litigation hold when the matter began. Accordingly, all potentially discoverable information was being preserved. The requesting party did not dispute the adequacy of those preservation methods. Given the requesting party’s broad discovery requests that would impose an undue burden on the responding party, the court concluded that the continuance of a discovery stay which had been entered six months earlier was appropriate.

Rule 1 of the Federal Rules of Civil Procedure, requires that the rules be “construed and administered to secure the just, speedy and inexpensive determination of every action and proceeding.” Defendants should make the argument that Rule 1’s mandate merits a Rule 26(c) discovery stay in appropriate circumstances. Generally, the pendency of a dispositive motion is a necessary predicate to obtaining a discovery stay. Moreover, to the extent that a defendant can demonstrate to the court’s satisfaction that a timely litigation hold was issued and that potentially relevant data is being preserved, the more likely it is that a district court would grant such a motion. Another important factor that improves the likelihood of obtaining a stay is the cost and burden of responding to broad discovery requests from the opponent.

There are some district court judges who will be reluctant to enter an order staying discovery under any circumstances. However, given the concerns over ediscovery costs, when an attorney is confident that his or her client has taken the necessary steps to properly preserve potentially relevant data, a motion to stay electronic discovery should be considered in tandem with the filing of a potentially dispositive motion. The Select Portfolio and Lockheed Martin decisions demonstrate that Rule 26(c) motions to stay are an underutilized tool that should not be overlooked as a way to avoid potentially unnecessary ediscovery costs.

However, be sure to discuss the issue of a stay with your client before you seek one. The client should be advised that if it is unable to produce relevant ediscovery if and when the stay is lifted, sanctions are likely to follow. A number of courts have imposed sanctions after counsel had represented to the court that a litigation hold had been issued and potentially relevant information was being preserved when in fact it was not.

What is the one line from the movie Cool Hand Luke that everyone remembers?

No, it’s not Carl the floor walker’s speech about spending “a night in the box” for various rule violations. And no, it’s not Dragline’s comments about Lucille as she washes a car in front of the chain gang while they are cutting down weeds on the side of a road. It’s the Captain’s infamous line after he knocks Luke to the ground with a billy club: “What we’ve got here is failure to communicate.” And that is today’s tip for avoiding ediscovery sanctions.

So what does a “failure to communicate” have to do with avoiding ediscovery sanctions, you ask? In short, just about everything. To paraphrase Carl the floor walker’s speech from Cool Hand Luke, if you fail to properly notify your client in writing about the need to impose a litigation hold, you get “a night in the box,” if you fail to follow up with key personnel to make sure they have been advised of the hold and are preserving information, you get “a night in the box.” And if you fail to follow up with periodic reminder notices to the client, you get “a night in the box.”

Avoiding ediscovery sanctions is an issue that we all have to take very seriously. Kroll Ontrack recently surveyed ediscovery decisions published in 2008 and amazingly found that 25% of those decisions addressed the imposition of sanctions. The sheer number of cases addressing ediscovery sanctions should give you pause. The decision of Keithley v. The Home Store.com, Inc. made the top of Kroll’s hit parade, so it’s worth your time to review to see how things went off track.

The district court in Keithley specifically quoted United Medical Supply Co. v. United States, 77 Fed. Cl. 257, 258-59 (Fed.Cl. 2007), to explain how it viewed the sanction’s motion before it:

Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence. Our adversarial process is designed to tolerate human failings –erring judges can be reversed, uncooperative counsel can be shepherded, and recalcitrant witnesses compelled to testify. But when critical documents go missing, judges and litigants alike descend into a world of ad hocery and half measures — and our civil justice system suffers.

The magistrate judge described the discovery misconduct in Keithley as “among the most egregious” the court had ever seen. However, several of the ediscovery issues the court addressed could have been potentially avoided simply through proper communication.

The first “failure to communicate” occurred when counsel neglected to issue a written litigation hold notice. While the defendant’s chief information technology officer was instructed not to destroy any materials that might be relevant to the potential litigation, nothing was ever reduced to writing — a critical mistake in the court’s view. As the court explained: “The lack of a written document retention and litigation hold policy and procedures for its implementation, including timely reminders or even a single email notice to relevant employees, exemplifies Defendants’ lackadaisical attitude with respect to these important documents.”

A second “failure to communicate” occurred when the client failed to identify its key personnel who may have possession of potentially relevant data and when counsel apparently failed to promptly follow up on this issue so that the key players could be timely contacted concerning the need to preserve and produce potentially relevant data.

Keithley also provides a reminder that counsel should endeavor to explain, as broadly as possible, where the various sources of potentially relevant electronic information may be found so that none are overlooked.

The case involved allegations of patent infringement, where source code information for computer website software was critical to plaintiff’s case. A 30(b)(6) witness had testified that sometime after 2001, a database containing earlier versions of source code had been eliminated so that earlier versions of the source code were no longer available. However, shortly after a hearing was held on plaintiffs’ sanction’s motion, defendants produced a CD with 220 megabytes of missing source code. One engineer, who only had been contacted weeks earlier about the missing source code, found an archived CD in a drawer in her cubicle, and another engineer found additional source code on a crashed hard drive which he had stored at his home.

The court was “frankly shocked” by this development since it had ordered all versions of source code to be produced fifteen months earlier. The court explained: “The ignorance of technical personnel of the importance of old source code to Defendants’ preservation obligation is not, of course, a legitimate excuse. Defendants had a duty to notify and periodically remind technical personnel of Defendants’ preservation obligation and ensure that they took adequate steps to safeguard the data. At a minimum, Defendants were reckless in their conduct.”

In Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006), a district court criticized counsel for simply accepting a client’s representation that because an entity had gone out of business, there was no electronic data to be found, when in fact, information remained on a network server. Keithley provides a similar example of that type of communication breakdown.

The plaintiffs in Keithley had sought production of reports concerning how the defendants’ websites were used. At the sanctions hearing, counsel for the defendants represented to the court that his clients’ web sites operated like Google, that they permit users to make ephemeral queries but do not store the responses – in other words, there were no reports to produce. To make such a representation, counsel must have received that information from the client. However, a little over two weeks later, defendants produced over 480,000 reports found on a hard drive. While the court found that defendants did not destroy any reports, the fact that they represented to the court that no reports existed when in fact they did, constituted “serious misconduct that [was] grounds for sanctions.”

Significantly, the court in Keithley noted that under Rule 37, sanctions can be imposed for negligent conduct, and that bad faith is not required for the issuance of an adverse inference instruction. The court ultimately recommended that a large monetary sanction be awarded (in addition to a prior award of $126,000 in fees and costs to plaintiffs associated with their original spoliation motion), and also recommended that an adverse inference instruction be given.

In real estate, they say location is the key to success. With ediscovery, the first key to success is communication. So take a tip from Cool Hand Luke and don’t have Carl the floor walker sentence you to time in the ediscovery sanction’s box for a failure to communicate.