Disdain and frustration fills the 256 page opinion from US District Judge Iain D. Johnston sanctioning defense counsel and defendant. The Gibbons Law Alert summary manages to convey some of this, rightfully calling it “a veritable Keystone Kops series of discovery errors and misrepresentations spanning several years.” Judge Johnston’s righteous ire over counsel’s ‘indifference’ and ‘incompetence’ regarding the defendant’s behavior that resulted in incomplete productions and ESI loss is a rare breath of fresh air. Every eDiscovery practitioner has encountered clients/execs who refuse to take preservation and collection duties seriously. We need more of these kind of harsh sanctions to put teeth into the risk of noncompliance.
Why such a long opinion? To carefully lay out the history of malfeasance and build a clear case for sanctions that are far too unusual in our justice system. It was obvious to me that Judge Johnston anticipated and was heading off a potential appeal. Rather than reiterate the facts available in the Gibbons summary, I wanted to highlight a couple of items:
- Defendant Drake was allowed to self-collect local email without supervision because he was ‘technically competent’ in comparison to defense counsel. As you might expect, that resulted in him cherry picking a limited set of email and ignoring two sources of cloud email relevant to the trademark dispute (Yahoo! And GoDaddy). While I believe that there is value in collecting known relevant ESI during initial interviews with key players, the strategy falls under the ‘trust but verify’ rule. Whether the signed by counsel, internal legal team or an expert, the certificate of compliance to the discovery rules needs to be taken seriously.
- “Among other things, Duke testified that he only deleted junk emails, searched all email accounts to find any documents that were requested, and turned over all his records to the former defense counsel. Tr. 225-26. Much of this is false.”
- Defense counsel asserted that they had verbally communicated the scope and requirements of a legal hold to defendant Drake. Busy execs may grumble at having to acknowledge a written or online legal hold. Too bad. A reasonable preservation process should be documented if you expect it to stand up to scrutiny. Many of my clients put executive frequent legal hold flyers on permanent in-place hold to avoid any confusion as holds are released.
- Years into discovery, defense counsel engaged 4Discovery, ‘an elite B2B digital forensics firm’ to send a collection drive to image the four local machines that defendant Drake asserted contained all relevant communications. “The mission Liberman gave 4Discovery was this: “Here are the four hard drives. Please image them.”” eDiscovery should not be a simple point-click commodity service. Neither 4Discovery nor defense counsel interviewed defendant Drake until late 2019, well after they had run search terms that found an additional 15,000 previously uncollected, unproduced responsive documents. Having waded through executive Inboxes, I am pretty sure that there were forwarded copies and CC’s to the cloud email accounts that defendant Drake did not disclose. In fact, his GoDaddy email account had an auto-forward and a 60-day expiry policy that was happily playing Pac-Man with his email. As more states add eDiscovery competence requirements to their rules I am pleased to see counsel come to the table with ever increasing understanding and appreciation for the complexity of modern ESI sources. As technical experts, it is our responsibility to proactively support counsel and highlight potential issues with incomplete data collections, gaps, corrupted files, etc.
The full opinion is a LONG read and I will not pretend to have the bandwidth to do more than a fast skim. However, such strongly argued and worded eDiscovery sanctions are rare and precious things. I tucked this one away for my next assessment where I run into a ‘discovery does not matter’ client. I would love to know the final ‘seven figure’ plaintiff compensation if anyone spots that update.
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This order, in and of itself, could be the sole curriculum for a modern eDiscovery CLE course. The only glaring omission that I can see is the failure to discuss the possibility Duke used IMAP or POP to access the GoDaddy or Yahoo communications. The distinction between webmail vs. “local” email is somewhat arbitrary and inaccurate. Further, I am very suspicious a Stanford educated entrepreneur was not aggregating messaging to a single endpoint, even in 2010.
Based on the language in the order, I believe that the bench did not believe the ‘ignorance’ argument but refrained from perjury accusations without further proof.