Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2013-10-09 20:00:00Format, images and links may no longer function correctly.
Many of the articles and blogs concerning the ruling in GlaxoSmithKline LLC v. Discovery Works Legal Inc., et al., Case No. 650210/2013 will try to tell you that these kinds of alleged provider misconduct are rare and isolated incidents. Indeed, attorney Michael G. Van Arsdall’s January article asserts, “Of course, there is a very low likelihood such a hostage situation would ever arise with the larg number of reputable vendors that occupy the e-discovery space.” I found Mr. Arsdall’s excellent recommendations for handling providers recycled through numerous blogs/articles without anyone questioning his basic assumption that you should not have issues with ‘reputable vendors’. I wish that business practices in our industry were somehow special, different or above the basic conflicts in the global consumer-provider market that litigation thrives on. We all make our livelihood on bad business deals. So why should eDiscovery providers be any different? Buy any experienced litigation support manager a few libations and then ask them about the ‘bad’ vendors. Then do the same thing with any eDiscovery sales rep and compare the stories. The eDiscovery market is still a relatively immature industry founded on emergency, reactive services purchased with someone else’s money under adversarial conditions.
That means that no one wants to admit human error, miscommunications and untested technologies. The sad story behind Judge Shirley Werner Kornreich’s ruling is probably a lot more complicated than it looks on the surface. Given the fact that Discovery Work’s seems to be on the financial edge of collapse, their CEO’s alleged threats against GSK’s 20 TB of data may need a bit more context to understand. I have acted as an expert against providers in far too many of these kinds of ‘eDiscovery gone bad’ cases to believe that any of them have a simple good/bad guy explanation. Most eDiscovery provider-client fights never become publicized. Both sides have a vested interest in wrapping their dirty laundry in confidentiality agreements and moving on. It is my belief that many eDiscovery providers do not think that it is unethical to cut off access to critical hosted data to compel payment of delinquent of disputed bills. They know that it will probably sour the client relationship, but that is probably a complete loss already. So what do they have to lose?
You would hope that the counter-threat of public disclosure of such tactics would provide a real deterrent. Every service provider brags about their great customer service and how they stand behind their work. It is easy to say when you know that the confidential nature of our business practically guarantees that an attorney or other legal professional literally cannot talk about such issues. What is the appropriate forum to spread the word?
Disaster recovery is a foundation pillar of the IT world. That includes planning for disputes and failed provider relationships. Just this week, mid-tier cloud storage provider Nirvanix folded shop and told clients that they had two weeks to migrate their data. If it can happen to IBM, it can happen to your eDiscovery provider. I am not going to copy and paste Mr. Van Ardall’s contingency recommendations on provider contracts. Instead, I am recommending that we start treating eDiscovery as a normal business process that should include disaster recovery risk assessment throughout the lifecycle of the matter.