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“April Fools!”, “The Dog Ate My Laptop,” “The Associate Screwed Up,” and Other E-Discovery Defenses

If the electronic discovery only involves keyword searches, make sure that the attorney performing the searches is properly trained. Proper training or the assistance of an electronic discovery expert may be the best strategy in any case involving e-discovery.

“Some guy stole my laptop at JFK.”

The excuse may have crossed your mind at some point. Attorneys actually used it in court – and narrowly avoided spoliation sanctions. In electronic discovery cases, the bottom line is to avoid these questionable defenses and to rely on a trained attorney or electronic discovery expert.

In Diabetes Centers v. Healthpia, both parties seemed to dodge the e-discovery sanction bullet. Both parties filed motions for sanction and discovery abuses. Essentially, Judge Atlas denied both motions because neither party provided e-discovery in the ideal manner. Overall the opinion would suggest that litigants should use attorneys trained in e-discovery or e-discovery experts when conducting the case.

The following are some of the defenses used and the overall lesson to be gleaned from the situation:

“The fresh-out-of-lawschool associate screwed up.”

The Plaintiff alleged that the Defendant withheld emails that should have been produced. In response, the defendants explained that it was the firm’s fault for having a inexperienced, young associate conduct the inadequate keyword searches. For example, the associate failed to search for the term, “phone” when the product litigated was a glucose phone that directly contacted a patient’s doctors after reading a diabetic patient’s glucose levels.

To avoid blaming the inexperienced associate, a firm could consider hiring me or one of my peers enrolled in the Seton Hall Electronic Discovery Course. In all seriousness, a law firm should ensure adequate e-discovery training for all attorneys conducting discovery. A firm may further consider hiring an electronic discovery expert to handle strategies in large e-discovery cases.

The “some guy stole my laptop at JFK” really was used in this case.

The Defendant’s attorneys claimed that they could not produce back-up emails because one laptop was stolen from a cubicle and the other was stolen at JFK airport. The Plaintiff challenged the truth of the matter. Since the Plaintiff had their own issues with providing timely discovery documents before an out of state deposition, the judge was forced to split the baby down the middle.

The key lesson of this case is to ensure proper training of attorneys and staff involved in the electronic discovery process.

“A recent decision in Texas suggests that inadequate keyword searches could lay a predicate for spoliation sanctions when the defective searches cause evidence to be lost.” (Inadequate Keyword Searches by Untrained Lawyers May, in Some Circumstances, be Sanctionable, author Ralph Losey)

Katherine Sparks is a third year law student at Seton Hall Law School. Upon graduation Katherine will take the Texas Bar and join a litigation firm based on Houston, Texas.

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    The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.

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    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg

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