Forensic Update

Reflections on information management within the legal and regulatory arena

Archive for June, 2013

The (not so) Lost Art of Dropping the Ball…

Posted by Johnny Lee on June 11, 2013

Students of eDiscovery case law (at least in the United States) are quick to identify the motifs that make for good sanctions stories. From Creative Pipe to Qualcomm to a host of others in recent years, one of the stark themes in these cases is the notion of “abuse” of the process.

In a recent case from the Northern District of Ohio, we have these motifs in spades. Indeed, this decision hearkens back to Magistrate Judge Paul Grimm’s insightful synthesis of spoliation law as it relates to electronically stored information in the Victor Stanley, Inc. v. Creative Pipe, Inc. matter.  This current case, however, involves a 2006 suit brought by the United States Equal Employment Opportunity Commission (EEOC) on behalf of Dean Okafor and Hakim Nurridim, who allege that Defendants directed racial slurs at them and that Defendants retaliated for the discrimination charges brought by the EEOC.

In January of 2013, United States District Judge John Adams declared a mistrial after finding that attorneys for one of the parties had removed critical information from trial exhibits. While “redaction” is certainly not a novel concept in American litigation, the inability to explain the reasoning behind such edits tend to be frowned upon in American jurisprudence, and this is what makes this particular sanction example so intriguing.

Judge Adams found that the underlying information that was removed “could clearly alter the entire landscape of these proceedings and the legal theories pursued during trial.” Accordingly, the removal of these data from exhibits, coupled with the inability to articulate any sound reasoning behind the practice, “clearly resulted in substantial prejudice.”

Adams goes on to write that “[in] candor, the Court has strongly considered default judgment in this matter,” citing “a lingering question over how much evidence may never be produced due to either Defendants’ negligence or malfeasance.” Indeed, the only reason for withholding this particular sanction (of default judgment) is that it would provide “a windfall for some if it were granted in total.” Instead, the Court found that an award of attorney fees will serve as a “proper sanction,” thereby making Plaintiffs “somewhat whole for all of the time that was essentially wasted in conducting discovery and trying this matter without all the facts that should have been made known to them.”

The defense offered by the Defendants for this finding of “negligence or malfeasance” for eDiscovery practices?  Electronic Discovery is a lengthy, cumbersome, and complex process involving the identification and sharing of thousands and thousands of documents. Thus, excluding a few select documents from this “herculean” effort should be excused as mere oversight.

The court disagreed, stating that despite “ongoing litigation, Defendants had apparently made no efforts to segregate the items that were properly responsive to discovery. This fact could also conceivably explain why Defendants’ in-trial production resulted in numerous documents being produced that had never been previously produced in more than six years of litigation.” The court went on to say that “simple neglect would be the kindest interpretation available for Defendants’ conduct. In reality, in less than 24 hours following the Court’s demand to produce documents, Defendants were suddenly able to locate and produce documents directly responsive to years-old discovery requests. The Court must now determine what sanction, if any, in addition to a mistrial, is appropriate in this matter.”

The sanctions additional to mistrial took the form of over $300,000 in attorneys fees.  Judge Adams also ordered further discovery (with costs to be borne by Defendants). The full opinion was filed on May 22, 2013 and can be found here.

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