Can Defendants be Trusted to Self-Collect their own ESI Productions?
This week our blog has been discussing U.S. District Judge Shira A. Scheindlin’s opinion in National Day Laborer Organizing Network, et al. v. U.S. Immigration and Customs Enforcement Agency, et al., 2012 U.S. Dist. Lexis 97863 (SDNY, July 13, 2012), which raises the question of whether defendant custodians can be trusted to “self-collect” or search their own electronically stored information (ESI) for relevant documents and data. Judge Scheindlin’s opinion urged government agencies as defendants to move into the twenty-first century and use computer assisted issue coding for ESI production.
This has not been the first case where the defendants’ trustworthiness was questioned. Frequently compared to the idea of “the fox guarding the hen house,” inadequate defense productions can be the result of inadvertent mistakes, such as misuse of search terms or inexperience dealing with the computer technology necessary for ESI productions. Further, an even bigger problem would be the defense engaging in spoliation, or willfully destroying evidence in advance of litigation. A court may sanction litigants who engage in spoliation; although first the other party must be able to demonstrate this fraudulent activity actually occurred. This is not always an easy task.
One recent case where “the fox guarding the hen house” problem was discovered a year after a settlement was reached was Green v. Blitz U.S.A., Inc, 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011). It was a product liability case, and the parties agreed to a high-low settlement agreement as the jury deliberated. The jury returned a verdict against the plaintiffs, who then received the low end of the settlement agreement previously agreed upon.
One year later, during the course of another lawsuit against the same defendant corporation Blitz, different plaintiffs found that Blitz had destroyed certain electronic data and documents in the Green v. Blitz case. The plaintiffs in Green moved to reopen the case, and the court sanctioned Blitz in the amount of $250,000.
The plaintiffs in the old case got lucky that the new case exposed the spoliation that would have otherwise gone undetected. Litigants who suspect the defense is engaging in inadvertent or purposeful eDiscovery evasion may seek out plaintiff expert computer forensics that can search hard drives to recover deleted files and engage in forensic analysis of electronic data. Call us today at 888-313-4457 for more information.