eDiscovery Sanctions: Don’t Lose the War For Lack of a Nail
Most everyone is probably familiar with the proverb about the loss of a kingdom due to lack of a horseshoe nail:
“For want of a nail the shoe was lost. For want of a shoe the horse was lost. For want of a horse the rider was lost. For want of a rider the battle was lost. For want of a battle the kingdom was lost. And all for the want of a horseshoe nail.”
We can easily relate that sequence to so many events in our lives…sports loss, missed business opportunities, love lost…and yes, loss of eDiscovery cases or the dreaded imposition of sanctions. Often all due to lack of some relatively small action, or lack of attention paid to specific eDiscovery requirements by clients who are participants in a legal matter. Just a sample of court rulings show these are not rare occurrences:
- Ronnie Van Zant, Inc. v. Pyle; S.D.N.Y. (2017) – Adverse inference against one of the defendants for failure to preserve text messages;
- E.E.O.C. v. GMRI, Inc.; S.D.FL (2017) – Court granted sanction in part to plaintiff to show that defendant had not preserved or had destroyed documents and emails relevant to the matter;
- GN Netcom, Inc. v. Plantronics, Inc.; D.Del. (2017) – Court would read ‘stipulated facts’ to the jury regarding defendants intentional and admitted deletion of emails;
- Schmalz v. Village of North Riverside, et. al.; N.D.Ill. (2018) – Gross negligence for failure to preserve cellphones, resulting in loss of text messages.
At least one theme courses through all of these decisions: The client was remiss in duties to preserve and/or produce relevant material. While there may be diverse motives at play here, one can be generous at least in part, and determine that the client in each instance was not properly versed, trained or informed in his/her eDiscovery responsibilities. Whether the client paid penalties or not, the representing law firm and attorney risked loss of reputation at the very least. In some instances, the firm faced financial penalties for client errors, based on recent updates to ethics standards requiring attorneys to better train and inform their clients on those responsibilities the client must adhere to.
Due to the increased demand on attorneys in this regard, coupled with changes and updates to Federal Rules of Civil Procedure requirements, many firms and attorneys are simply overwhelmed and at a loss for time to acquire and dispense the required knowledge and expertise to their many clients. Please keep in mind…the firms I have in mind here are the small to midsize firms that cannot justify building a robust internal eDiscovery group that large domestic and international firms have as a matter of course. So, to the heart of this proposal:
I would propose that law firms develop a standard eDiscovery program that they can offer to all their clients. This program would be part educational, part training, and part “hand-holding” (for actual litigation proceedings). Most importantly, this standard program would not be just a blank template; each client would receive a program best suited to their environment and unique style, and legal needs. At this point, I’m sure any attorney reading this will think, just how does this lessen my workload burden and how can I do this when I need training myself?
The answer: Bring in an outside expert to design the standard eDiscovery program, and to implement a customized version of that program to each of your clients. While there are costs associated with this plan as with the use of outside expertise in any endeavor, the benefits, financial and more intrinsic to the firm’s reputation, would seem to outweigh those costs. Here’s at least a partial list of those benefits:
- Most importantly, avoiding those messy little (not really) errors that pop up in court as mentioned in the sample cases earlier. Given that some of these missteps are mischievous acts on the part of a client, far more often the client simply was not well-trained or -informed of all the duties required for adherence to FRCP requirements. A well-trained client will at least be able to get off on the right foot in identifying and collecting data appropriate to the legal hold guidelines.
- Avoiding court displeasure directed at the attorney for lack of client expertise. I’m not an attorney but, based on conversations with those attorneys who have the experience of appearing in civil cases, I understand the importance of at the very least not incurring the wrath of the bench; even better is to incur the admiration of the bench for a well-prepared case and client.
- Consistency in responsiveness for each client in new matters as they occur, and consistency among all the firm’s clients in how they react to, prepare for, and produce data for matters. This is not a specific financial benefit, but one that does produce financial return by having a more efficient process that can almost “run itself”, or at least requires far less attention and effort on the attorney’s part for the small but important details of eDiscovery response.
- A smoother-running firm – basically another benefit of the consistency factor. Because the eDiscovery consultant has implemented the program to all clients and is involved with ongoing compliance, the law firm itself concentrates on what it is designed to do – law stuff.
- A happier and more responsive client. Clients are paying law firms to protect them and provide legal benefits, in part. They need to see some of those benefits as something they can measure or almost seem to touch. Having someone working directly with them to expand their knowledge, prepare them for action, and assure them that the firm actually proactively cares about them seems to me a great promotional as well as real effort for that firm.
I truly believe these listed benefits, and more that aren’t touched on here, are well worth the time a law firm should spend in finding and utilizing a qualified and experienced eDiscovery consultant, and devoting the resources needed to create a well-defined and implemented eDiscovery program built for each client. Happiness is never losing a battle for lack of that “nail”.