Communication is King in E-Discovery

Almost three years ago, I posited that communication is a key aspect in resolving e-discovery issues.

Back in 2009, the economy was in the doldrums and the broader legal community was starting to grapple with e-discovery. In the intervening three years, technology and the economy have been steadily moving ahead and with it the Court’s expectations of litigants’ e-discovery expertise. However, the oldest tool in the box, communication, has not lost its luster of importance within the e-discovery field.

No matter how advanced technology becomes, communication will never cease to be a necessary tool. Legal and technical stakeholders each speak in English but the similarity stops here and language diverges. The mindset of the technologist does not usually follow the mindset of the litigator since most lawyers go to law school because of aversion to math and science at some level and technologist have an aversion to legal acumen.  Today, a common vocabulary is certainly emerging making dialog between counsel and technologists both productive and effective. However, equally important is that lawyers engage their client’s technology team in dialog on e-discovery issues, because when counsel fails the fall out can be costly.

Ultimately the ramifications when a communication disconnect arises between legal and technology are penalties that can range from a mild public judicial admonishment to losing a case and incurring significant costs.  A textbook example of such a communication breakdown is illustrated in Play Visions (Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011)).  In Play Visions, the parties were engaged in a protracted patent and trademark dispute. About a year in to the dispute the Plaintiffs moved to voluntarily dismiss the case and the Defendants did not oppose, but they did seek sanctions for discovery malfeasance by the Plaintiffs.  Defendants alleged that the Plaintiff’s counsel repeatedly failed to connect (or communicate) with Plaintiff’s IT department for electronic records, as Plaintiff initially claimed all relevant documents were kept in hard copy.  During a 30(b)(6) deposition of the Plaintiff CFO, it came to light that neither the Plaintiff nor their counsel asked (or communicated) the IT department for electronic records. The Court also recognized that the Plaintiff’s counsel “was not involved in identifying records custodians, did nothing to familiarize himself with Play Visions’ document retention and destruction policies, and did not assist in searching for or responding to Defendants’ first or second requests for production.” (Order Dismissing Case at 7). This failure by counsel to communicate with their client’s in-house IT department resulted in the Court granting the Defendants motion for sanctions of $137,168.41 holding the Plaintiff and counsel jointly and severally liable.

Play Visions illustrates what happens when counsel fails to communicate to the client and client’s technology team about the proper management of discovery involving electronic records. Moreover, Play Visions demonstrates that if communication breaks down around e-discovery the results can be fatal to a case. So, counsel best heed the oldest tool in the toolbox once again: Communication.