Friday, October 3, 2014

E-Discovery Is Complicated, But It Is Still Discovery.

Reasonable cooperation between opposing counsel during discovery can save clients significant costs and delays in litigation. The current proposed changes to the Federal Rules of Civil Procedure to require more efficiency and proportionality in e-discovery certainly support those efforts. But some would argue that many discovery disputes could be avoided - even in the complicated world of e-discovery - if attorneys adhere to their fundamental obligations in discovery After all, e-discovery is still discovery, as we were reminded in Branhaven, LLC v. Beeftek, Inc., 288 F.R.D. 386 (D. Md. 2013).

In Branhaven, the defendant served discovery requests on the plaintiff on January 31, 2012. On March 21, 2012, the plaintiff’s counsel signed written discovery responses indicating that responsive documents would be available for inspection and copying at a mutually convenient time. The court noted, however, that counsel had done little, or nothing, in terms of a reasonable inquiry and had no knowledge of the number and identity of responsive documents when the written responses were provided. In fact, the record reflected that the plaintiff’s counsel had not taken any action until the middle of June when the plaintiff’s counsel finally produced some documents that were in counsel’s possession. Then, only a few business days before depositions were to start, the plaintiff produced 112,106 pages, apparently from certain e-mail servers and laptops that had been previously overlooked. In response to the defendant’s motion for exclusion and sanctions, the plaintiff argued that the production was mostly delayed because the plaintiff lacked access to passwords for the servers, which were purchased as part of an asset sale of another entity in 2011.

The court was not convinced. Instead, the court stated that, while a one-month delay before seeking vendor or IT assistance might be reasonable, a five-month delay was not.  Coupling that with the fact that plaintiff’s counsel’s signed responses had been made prior to any investigation by counsel, the court found the plaintiff’s actions punishable through the award of attorneys’ fees to the defendant for both the time spent drafting and prosecuting the motion for sanctions, and for the time spent converting the plaintiffs’ produced documents to a reviewable format (which was a separate complaint by the defendant). The court did not, however, exclude the documents.

E-discovery is time consuming, complicated, and costly, but as Branhaven reminds us, it is still discovery. Attorneys should not use meaningless and arguably misleading written responses to buy time and technically comply with Federal Rule 34. Accordingly, attorneys and their clients should be prepared to make a meaningful production before providing written responses that promise production at a mutually agreeable time and place.

For your reference, a copy of the Branhaven decision is linked here:

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