One of the truly fascinating dimensions of e-discovery is evaluating whether lawyers' conduct which becomes the basis for sanctions imposed by a court is truly the result of the lawyer's negligence or ignorance of what is required to find and preserve ESI, or involves, instead, a calculated gamble to not get caught. In re Delta/Air Tran Baggage Fee Antitrust Litig., 2012 WL 360509 (N.D. Ga. Feb. 3, 2012) is one of those cases.The rules are simple: Rule 26(e) of the Federal Rules of Civil Procedure says a lawyer must conduct a "reasonable inquiry" before signing and delivering to the court and opposing parties pleadings, disclosures, and other discovery work product. In this case, on approximately 20 occasions, Delta and its attorneys made representations that all of the responsive electronic records had been identified and produced. In fact, they withheld from the court their own knowledge of contradictory facts until the plaintiff had started motions for sanctions.Imagine standing at a Lost and Found window in a retail store and having the corporate employee deny they found your child's backpack and, over their shoulder, you can see the backpack sitting on the shelf. Plaintiff's counsel must have felt the same way. Now imagine that occurs for 20 encores, during which the employee, the employee's manager, and the onsite security team all earnestly deny what is as plain as day-the evidence is there, and they refuse to look. As it turns out, when discovery was re-opened in this case, over 60,000 additional pages of responsive documents were discovered on the hard drives of custodians that were overlooked in the production, and as a result of discovering backup tapes in an evidence locker for which no one claimed responsibility or knowledge. The court's findings attributed the omitted hard drives to a failure of counsel to verify that, in fact, all hard drives designated for collection and preservation were collected. The court questioned how Delta overlooked backup tapes stored exactly where they belonged-in an evidence locker used for preserving materials for litigation.So, the court concluded a "reasonable inquiry" was not conducted and imposed sanctions, but did not impose sanctions that were "outcome determinative", observing there was no "smoking gun" within the discovered pages, and generally commenting on the cooperative conduct of Delta after the truth was finally told. Key was the court's observation that there is no "safe harbor" for "a lack of diligence" by counsel. There is significantly more analysis in the court's findings of what went wrong. But, what could have been done in order to make things go right? It is clear that Delta failed to require their law firms to establish disciplined process management controls, including a) accounting for the inspection and analysis of known storage locations (i.e., an evidence locker!) and b) verifying that all designated hard drives were, in fact, collected. It is even more clear that the law firms failed to have those controls in place. But, what is puzzling is that Delta's counsel made 20 misrepresentations without apparently ever asking the sensible question: "Do we know I am right in representing that everything was collected?"Had the two steps suggested above been followed, and had counsel produced a record that indicated they had, in fact, audited the accuracy of the representations that were made, it is unlikely the overlooked ESI sources would have been overlooked. It is even more likely that the resulting delays would have been minimized. Its not much harder than asking that lost and found employee to actually look over their shoulder to see the evidence of their mis-statements.What is also puzzling is that the court did not elect to impose sanctions directly on the counsel that made the misrepresentations. Or refer the lawyer to the bar association for having demonstrated a lack of competency that violates the ethical standards of the legal profession. Until courts begin to place attorneys directly at risk for this type of behavior, the attorneys lack the independent motivation needed to avoid these "mistakes". We will never know for sure, but these facts suggest more than negligence or ignorance by the lawyers was in play. Had the lawyers developed a discovery plan, reviewed its provisions with opposing counsel, created documentation that clearly recorded the steps of the discovery plan were followed, and had that documentation available when challenged, then it would be harder to reach that conclusion. ***RitterMaps provide the detailed structured methodology for better assuring that you are not exposed to sanctions that are based on your own negligence, ignorance, or poor project management. We are now licensing these RitterMaps directly to law firms in order they may see the full picture. Contact us at sales@ritteracademy.com for more information.ShareThis
