Placing a “Computer Illiterate” in charge of eDiscovery is not a winning strategy for the defense


A case that had been decided for the plaintiff years earlier was reopened due to eDiscovery process questions. In the case of Green v. Blitz U.S.A., No. 2:07-CV-372 (TJW), 2011 WL 806011 (E.D. Tex. Mar. 1, 2011), the original attorney for the plaintiff was a plaintiff’s attorney on another case against the same defendant. During discovery for this other trial, the plaintiff’s attorney found out that evidence that should have been turned over for the previous plaintiff’s trial had not been. Because of this fact, the original lawsuit was reopened. In this second trial it was revealed the defendant had placed a single person in charge of electronic discovery for several ongoing cases. The problem with this was the person put in charge of eDiscovery was less than experienced. In fact, it was revealed that the employee “solely responsible for searching for and collecting ESI relevant to litigation between 2004 and 2007 issued no litigation hold, conducted no electronic word searches for emails, and made no effort to speak with defendant’s IT department regarding how to search for electronic documents.  In fact, the employee himself stated that he was “about as computer illiterate as they get.”

Making matters worse, some of the information discovered after the close of plaintiff’s case would have easily been identified with a simple word search, as the target words were in the subject line of one of the undisclosed emails specifically discussed by the court.  Also of note, as to the specific email discussed by the court, was the fact that the employee tasked with discovery was a recipient of the email and still failed to disclose it in discovery.  Despite failing to produce relevant material, the defendant made the certification that “full and complete disclosure ha[d] been made in accordance with the Federal Rule’s of Civil Procedure and the Court’s orders.”

The court also discussed defendant’s failure to issue a litigation hold to its employees and its failure to cease rotation of its backup tapes, two other actions expected when litigation is reasonable anticipated.  Accordingly, the court concluded that “it will never be known how much prejudice against the plaintiff was actually caused by the defendant’s failure to preserve documents” and found that sanctions were warranted.

Given the context and type of documents not disclosed, the court found that defendant’s conduct was a willful violation of the Court’s Discovery Order and that plaintiff had been prejudiced as a result. In other words, the original award would have been much higher if the ESI was found and turned over.

I don’t know if the defendant’s counsel choose a totally inexperienced person to run the eDiscovery process was just stupid or was part of a strategy to insure responsive ESI was not found. I think, minus proof of the second, we will have to go with the first explanation.

That being said, litigation hold and eDiscovery is a serious business and should never be taken lightly. Having control of your organization’s ESI is an important responsibility expected by the courts.

Case summary from eDiscoverylaw.com

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