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Court Declines to Award Sanctions, Observing that Human Error Is Common During ESI Review

Posted on April 13th, 2015

The District of  Nebraska considered whether to grant Plaintiff’s Motion for Rule to Show Cause in Malone v. Kanter Ingredients, Inc., et al., No. 4:12CV3190 (D.Neb. Mar. 31, 2015).

Plaintiff alleged that Defendants failed to follow the court’s eDiscovery order by failing to produce certain email communications and invoices. In advance of the hearing on the motion, the court ordered Defendants to do the following:

  • Locate the servers Defendant had imaged before production to ensure that the imaging was full and complete;
  • Produce any invoices on those servers, along with metadata;
  • Produce any sent emails located on the servers.

Defendants produced the full computer imaging to Plaintiff in response to the court’s order.  Plaintiff hired a computer forensics expert to review the imaging. Based on information learned from the expert’s review, Plaintiff alleged that Defendants had not produced all documents containing relevant terms. Plaintiff claimed that Defendants failed to re-search the computer imaging and failed to produce the additional documents in violation of the court’s order.

The court disagreed, noting that its order did not require Defendants to re-search the imaging but rather to provide Plaintiff with the computer imaging from the servers and to produce the emails and invoices from the servers, all of which Defendants did.

The court concluded that, at most, Plaintiff had identified mistakes made by defense counsel during its manual review of the electronic files. Observing that human error is common when reviewing large amounts of electronically stored information (“ESI”), the court concluded that counsel’s mistakes did not warrant sanctions, particularly because Plaintiff now possessed the full computer imaging. (The court noted, in a footnote, that predictive coding is now promoted and gaining acceptance by courts as a more efficient and cost-effective manner of document review.)

Because the court found that Defendants had fully complied with the court’s order and that no evidence suggested that Defendants had destroyed, hid, or recklessly failed to produce ESI, the court denied Plaintiffs’ motion for Rule to Show Cause.

ILS – Plaintiff Electronic Discovery Experts

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