This week’s case is a lengthy and well worth the read decision from District Court Judge Iain Johnston of the Northern District of Illinois. In a decision granting a motion for sanctions, but stopping short of issuing terminating sanctions, District Judge Johnston articulates—with wonderful precision and a tongue in cheek approach—what lawyers obligations are in dealing with ESI and electronic discovery and how a failure to live up to those obligations in a very long running case has left the court to shoulder a tremendous burden to sort through what the judge refers to as “fundamental. Alone, each failure was problematic. Collectively, they were cataclysmic.” Part 1 covers the facts of the case in detail and a discussion of the failings of counsel that led to the loss of evidence and imposition of sanctions, as well as steps on how to prevent such issues in the future.
Kelly Twigger: I am so pleased to welcome our inaugural guest to the Case of the Week, Briordy Meyers, who is the director and senior counsel of eDiscovery for Boehringer Ingelheim USA.
Briordy Meyers: Thank you for having me. Excited to talk about this today.
Kelly: This decision is long, and it starts out with three or four pages just of a Table of Contents alone. Don’t be dissuaded by that, and I would definitely start with the decision wraps itself, so it’s a little bit circular. The judge starts with kind of conclusory statements and looking at testimony, and then he gets more and more granular as he goes through the decision. It really does build on itself. It’s written a little bit differently than your average decision, but because of the length of it and the complexity of the case, it’s appropriate, to say the least.
What are the facts? The facts are this. Both DR Distributors and Century Smoking are companies that sell e-cigarettes. This case was brought in 2012 by DR Distributors against 21 Century Smoking as a trademark infringement case. DR Distributors owns the phrase “21st century smoke” and the parties agreed, within the context of the litigation, that the marks that they hold are confusingly similar. If you are familiar with trademark litigation, you know that the key element in a trademark case is whether or not there is customer confusion. In this particular case, the Court makes note that all of the documents that relate to customer confusion are, in fact, ESI.
DR Distributors entered the e-cigarette market in 2010. At the time, 21 Century Smoking was already in business and had been working with an overseas SEO expert from 2009 to some point in 2010 or later. That becomes very important because of the infringement claims. The defendant learned about the plaintiff’s trademark in July 2010. The question becomes — and it’s not really articulated in this decision, because there’s no discussion of when the duty to preserve was triggered — but it becomes a question of whether or not the duty to preserve information might have been triggered as early as July 2010, when the defendant knew about the plaintiff’s trademark.
As early as October 2011, the defendant had the plaintiff’s trademark inserted as a meta tag on the 21 Century Smoking website in order to drive traffic to the defendant’s website. They essentially took the plaintiff’s mark, put it in a meta tag on their website, so that when someone searched for and that hit came up, it would drive them to the 21 Century Smoking website instead of to the DR Distributors’ website.
In September 2012, the plaintiff filed a complaint for violations of the Lanham act infringement, deceptive trade practices, as well as a number of other claims. 21 Century Smoking asserted counterclaims, essentially counterclaiming for all the exact same claims. Both parties agreed that this was an eight-figure case. We’re talking about billions of dollars.
The case is — as we know, because we just got this decision a week ago — nine years old, and this judge, District Judge Johnston, got the case in 2014 as a referral from the district judge. He immediately held a conference to address ESI issues and specifically asked whether a legal hold had been issued, whether a protocol was in place, and whether the prime witness for the defendant was well-versed in ESI and knowledgeable in order to be able to respond to specific questions about ESI. In essence, what the judge said is, I don’t want this case to go down an ediscovery rabbit hole, and I want to make sure that you’re all doing what you’re supposed to be doing. The defendant indicated that, in fact, legal hold had been issued and that their witness was knowledgeable about ESI-related issues.
Discovery closed in the case in June of 2015. A little over a year after District Judge Johnston received it. During discovery, the defendant’s witness, Brent Duke, told counsel that all of the information related to 21 Century Smoke was on four computers in his possession, and he provided those four computers for imaging. The four computers were imaged by a discovery vendor called 4Discovery, and search terms were determined by defense counsel. Those were applied to data that was collected from those four computers and that information was produced in discovery.
We’re going to talk a little bit more as we get into the facts about the meetings that were held with the witnesses and the different players that were involved here, but from a timing perspective keep this in mind. Discovery closed in June of 2015. In July of 2015 — a month later — the plaintiff filed a motion to compel seeking communications between Brent Duke and his SEO expert, because those had not been produced in discovery. That motion to compel continues to move through the system.
In January 2018, the plaintiff also files a summary judgment motion alleging withheld documents and, at that time, the defense scrambles to figure it out — there’s a whole discussion of that within the opinion — and suddenly uncover hundreds of Yahoo emails, web-based emails that had not previously been produced, and use them in support of their summary judgment motion. There’s not even a discussion as to whether or not those emails were produced, just that they were used in support of the summary judgment motion.
Then, in May of 2018, the defense finally searches the Yahoo account and finds 15,000 additional pages of documents that are responsive to the search terms, and there’s still no discussion at all of a Yahoo chat function — which we’ll get to — even though counsel knew about the Yahoo chat and had produced a screenshot of a chat. That’s May of 2018.
Fast forward to nine months later, March of 2019. Plaintiff files a motion for sanctions for all of these discovery violations. In May of 2019, a few days before the defendant’s response is due to the motion for sanctions, Brent Duke finally tells his lawyers that he has a subsequent email account that has never been searched, which are referred to as the GoDaddy email. He had a web-based account that was hosted at godaddy.com.
At that point, counsel informed the Court of their client’s failure to produce this information, and every single one of them moves to withdraw. All of the decision refers to former defense counsel and they discuss each one of them by name. At this point, we’re at the basis for the motion for sanctions, which is a failure to timely produce ESI and spoliation of ESI. As we’re going to see, the Yahoo chats and many of the GoDaddy emails are gone as a result of practices and failure to preserve them.
The Court then holds on to the motion for sanctions five days of evidentiary hearings. Five days. He even specifically discusses that they go late into the night, and, during that hearing, we learned that trial counsel never issued a legal hold, did not know about the web-based email accounts for GoDaddy or Yahoo, or that Yahoo chat was used to coordinate with the SEO consultants. They did not instruct the client to disable auto delete on the GoDaddy emails. They allowed their witness to self-collect with no instruction, monitoring or documentation.
That’s just the tip of the iceberg of what we start to learn at that evidentiary hearing. And one of the reasons that the decision is so long is because there are so many facts and credibility and determinations that the Court unpacks from that. They also learned, of course, which I mentioned, that the witness withheld information about the cloud email accounts and the instant messaging service, and that, as a result, many of those documents were not collected and a lot of data was lost. There are specific discussions about failure to produce an online sales document, failure to produce video and recordings of the plaintiff at a trade show. There’s a lot here in terms of facts that really beg the question of what counsel were doing.
The Court also learned at the hearing that counsel neglected to address false sworn testimony of Brent Duke and failed to inform the Court when they learned of spoliation of ESI issues and that they really did nothing but rely on their clients and continued to repeat the same failures even upon notice of ESI issues.
Briordy, as we kind of dig in here, we don’t usually see in decisions that we talk about the specific players very much, but here it becomes more important just because of the various roles that people play, so we’ll talk about them briefly.
We mentioned Brent Duke, who was the owner and operator for 21 Century Smoking. He’s the one who reviewed the email accounts. He and the associate who worked at the firm met to discuss ESI-related issues. There’s definitive language in the opinion that there was no official custodian interview ever actually conducted and there was no supervision by lead trial counsel for the associate, who was a third-year associate with very little litigation experience. The associate and Duke, I believe, agreed that they reviewed the email accounts on his computer, but there was no discussion that they were web-based email accounts. He also intimated that all of the information was available on the computers. The associate was not knowledgeable about web-based accounts or about ESI issues generally, it appears from the decision, and although she informed him not to delete any information, she was not aware of the auto delete function on the GoDaddy email account, which means that it’s 60-day functionality continued to auto delete as they went through the litigation.
We’ve got Brent Duke, we’ve got the associate Lieberman, who was a third year, who really had little instruction and whose discussions with Duke were very inadequate to determine the scope of the ESI that was involved. The head trial counsel, whose name was Levins, did not issue a legal hold, did not conduct a custodian interview, and really delegated all of the authority for dealing with ESI to this third-year associate with no supervision. He does not, as is kind of prevalent throughout this case, until we get to a lawyer at the end of the case, none of them had any real technical knowledge about how email worked, about the difference between web-based email and server-based email.
This is a good time, Briordy, to just take a second and explain that difference. Can you just kind of walk us through what the difference is between server-based and web-based email?
Briordy: Yeah, sure. Server-based email, you’re looking at what most organizations probably have as your company-issued email account. Welcome to the company. This is your Outlook email, this is your account. There’s a client that resides on a server that specifically services our company versus web-based email that’s kind of out in the cloud somewhere. Sometimes it can be a company account, often it is a company account, but just technically the way that it’s set up is different. It also means, and by the way, even your company emails would not necessarily just be on your hard drive, they very often would not be on your hard drive at all. Server-based or cloud-based aside, there was still obviously a lot of room there to kind of dig in further in terms of relevant emails. I think why the judge is going into so much detail, it’s one thing to kind of not know the stuff, or especially maybe five years ago encounter some attorneys who aren’t as fluent in understanding the technology or whatever, but it’s another to kind of raise these flags multiple times and still kind of go past the warning signs and I think that a lot of the opinion opens up saying the Court has been snake-bit. Kelly, you’re right about this as actually an entertaining 105+ pages to read because of the colorful language, but to me, it’s not just that they didn’t know web-based versus server emails or any of the other stuff, it’s that they just kind of ignored the warning flags that he set up.
Kelly: You’re right that the Court obviously brings humor to the situation, and he’s fairly even-minded considering that. He mentions multiple times that there are thousands of litigants whose access to this Court has been delayed by virtue of the amount of time that the Court had to spend on this decision, and it’s enormous. What we do is there’s a litany of cast of characters here, none of whom knew and understood the difference between web-based email and server-based email, or even knew to have a custodian interview or acknowledged that all of the information hadn’t been collected.
I think you and I discussed offline that, had we looked at some of the information that had been provided from the computer, we likely would have been able to tell that there were Yahoo or GoDaddy or some sort of hosted account that we would have needed to go and collect. Email has to come from somewhere. Somebody has to be hosting the email. That is generally the first question that happens, because email is the most prevalent form of communication in corporate communications.
What I think is also interesting is this notion that in this case there’s a huge component that Brent Duke really kept information from counsel, there’s a big discussion that he’s a computer savvy guy. He took computer science classes, he’s developed websites, he owns many, many websites. There are many occasions in the decision where the Judge calls him out on his lack of candor and untruthfulness in filings and in testimony. You’ve got a bad client here. One of the things that we’re going to talk about in a minute is how do you deal with that from a perspective of your Rule 26(g) obligations in order to prevent exactly the kind of sanctions that occurred here.
We’ll skip forward a little bit because I don’t want to spend all of our time on the cast of characters. In essence, one thing that I do want to add is that at one point, Lieberman and Levins, who were the first trial lawyers on the case, did go out and hire an ediscovery expert. They hired Chad Goff, who is out of Chicago at 4Discovery, an incredibly knowledgeable expert who could have helped with everything here, could have done a custodian interview, could have identified the web-based email accounts, could have collected them, could have run the same search terms against them, and could have produced that information. Essentially, that ends up being his testimony at the evidentiary hearing. I think the point that I would make — and Briordy, I’m curious to see your thoughts — is if you don’t know what you’re doing, you need to go find somebody who does.
Briordy: Definitely, I think that’s true no matter who you’re talking about in the situation in terms of the cast of characters, if you’re the client, make sure that you’re aware generally of the importance of ESI, if for no other reason than the role of ESI’s evidence in your case. It’s one thing for you not to know that, but even just asking your vendor, is there anything else that you would ask? Maybe even those questions might have helped. I feel bad for the vendor getting pulled into this, frankly, because you shouldn’t have had to be involved and answer for what he did. I think they tried to shift some of the blame to the vendor, but he’s like, look, this is what I was hired to do. That’s what I did.
Kelly: Right, and that is something that the judge did really well in this decision is the ability to shift blame to the vendor because he was very specifically called out. We’ve seen that situation where we’ve been brought into cases and the vendor has been given very specific instructions and not given additional information. They can’t make stuff up; they can’t read the tea leaves. I mean, unless you tell them what the sources of information are that you have and help them, let them help address the challenges with each one of those sources and then document what’s done, then you’re going to have problems. That was another issue that the Court called out here — is that there was absolutely no documentation of any of either the meeting with Brent Duke about the sources of information, about what was covered there, or about anything in this case. For those of you who watch our weekly webcast, you know that that is a constant theme of mine. Document, document, document.
Okay, let’s fast forward a little bit into the analysis, Briordy, because I want to get to your takeaways. The Court found that the importance of the ESI to the case was completely pertinent to customer confusion and market penetration, both of which were all about ESI here.
The plaintiff’s primary position in the case was the placement of the Meta tag on the website by the SEO consultants and the fact that all that traffic was diverted and that all of the communications about putting that meta tag there were in this Yahoo chat, which was ultimately lost because it was not collected. Then Yahoo disabled the chat functionality, in, I believe, 2018. They had six years, either four years or six years, to be able to collect the chat information, and because Brent Duke didn’t fess up that it existed, it was not collected and lost.
The Court also didn’t believe that any of the former defense counsel intentionally destroyed, withheld, or hid ESI, but he was not as confident of Duke’s actions and inactions. I think that may be the most important point here, because we’re not talking about terminating sanctions in this case, are we?
Briordy: Right, exactly. It’s interesting because this opinion is so long and the judge goes into so much detail here, but yeah, ultimately, this is not terminating sanctions.
Kelly: Yeah, and we’re going to cover the explicit sanctions. But basically what we will tell today is that the judge found sanctions under Rule 26(g) under 37(a), (b), (c) and (e). There were many different sanctions that were laid out, including monetary sanctions against both the client and counsel, as well as instructions to the jury and the barring of any information that was produced. The defendants were not allowed to use any information that they produced after the close of discovery. That was very significant. Plaintiff could use it, but the defendants couldn’t use it.
Briordy, let’s talk a little bit about takeaways from this decision from your perspectives, both as in house and as firm.
Briordy: In house, I think what it reminds me of is just, frankly, the challenge of accounting for all data sources. Now, here it shouldn’t have been that challenging, right? You have web-based email. You should have talked about your email from a client’s perspective. In general, I think it’s a challenge for a lot of us who are in house to make sure that we’re accounting for whether or not custodians are using personal email for business purposes, for example, or are they using chats? The ephemeral nature of some instant messaging makes things even harder to kind of put your arms around. That’s just kind of one general reminder from this case, even if the facts of this case, it was a little bit more straightforward.
Kelly: How does this case impact your thoughts about the importance of ediscovery knowledge from your outside counsel perspective?
Briordy: I think it’s on some level. The lessons to be learned from this case are not new for those of us who practice ediscovery. I mean, it’s kind of the same things. Make sure you issue a legal hold, make sure you don’t allow the custodian to self-collect, all of that stuff. Make sure you document your processes, but it’s filled with so much drama because it goes to the heart of these relationships. First of all, I think, broadly, what this case is saying is that every attorney needs to have a sufficient amount of ESI knowledge just to be able to kind of ethically represent their client. You might not need to be the ediscovery practitioner, the ediscovery counsel, but you need to know enough to kind of when to get your ediscovery counsel involved. Those questions need to be asked. I think that on some level, it’s every attorney. The lesson is for every attorney, but then I think it shows the importance of practitioners, maybe like you and I, who focus on ediscovery and can kind of get into the weeds in this stuff and are used to talking to vendors about how to collect this data, or just used to challenging our clients, whether that’s internal or external, to kind of really tell us where all the data is.
Kelly: How do you pull together a team approach. You’ve got a vendor, you’ve got yourself in-house, but you’ve also got outside trial counsel. What are the important things to communicate both with the vendor and with outside counsel?
Briordy: I think high level, the role that ediscovery counsel often plays is connecting kind of the merits and the technology a little bit. Because we speak both languages, it’s impressing upon, and it is a team approach. You’re right about that. It has to be a team approach. If the folks who were doing kind of the on-the-ground ESI work vendors, maybe even some of your IT people, if they don’t have the context for why this matters, the merits of the case I mean, you don’t have to go into the granular details of the Lanham Act for sure, but if you don’t give them that context, then maybe their sense of urgency and purpose isn’t quite where you need it to be to kind of get the ESI worked on. Same thing on the merit side. If you’re not establishing a regular communication pattern with your merits counsel, that impresses or reminds them there are cases like this out there, if nothing else, but of the importance of getting this right to the merits of the case, then something is going to be lost as well. For me, the team approach is really just kind of bridging all of those gaps, if there are any.
Kelly: What about timing in terms of the team approach? When does ediscovery counsel get involved to make it the most effective?
Briordy: We’ve talked about this. Give me my druthers as early as possible. If you’re starting to think that there might be a reasonable anticipation of litigation, you should probably get ediscovery counsel involved. Very often that’s before a complaint is filed. Not all the time. Sometimes it’s when the complaint is filed.
Kelly: Here in the instance when Duke had seen the trademark and perhaps was putting it in a website as a meta tag, he might have anticipated that someone was going to be a little upset about that.
Briordy: Exactly. And if you go through the facts and kind of how he didn’t really come out with his knowledge about that, there’s some theories about he was trying to kind of piggyback on the plaintiff for a while and purposely didn’t bring that to the forefront, then he certainly must have been thinking about the potential of litigation or at least some dispute over the trademark.
Kelly: From that team approach again, what kinds of things do you normally share with your vendor in order to make sure that they’re in the loop on what you want to do for a given matter?
Briordy: I think vendor can be very broad. Depends on are you talking about your document review team?
Kelly: I like to use the term service provider more than vendor.
Briordy: Which is kind of what I was thinking of initially, too. At the very least, ESI production protocols. By the way, it’s a plug for production protocols on almost a lot of folks resist that too. Especially, I know in IP cases sometimes, but certainly the ESI production protocols, if you’re talking about your service provider, but maybe even the doc requests, maybe some of the pleadings, certainly to your document review team. Whatever it is, that enough of those filings to make sure that your ESI team understands kind of what this case is about, because that will allow them to anticipate things, to ask you questions, to kind of generate a feedback loop that helps close some of these gaps that lead to sanctions.
Kelly: One of the things that we do a lot as discovery counsel, as you kind of mentioned, is liaise with the service providers in order to say, guys, here’s how we’re going to want to use this information. Here’s what’s important to trial counsel. Here’s what we ultimately need to learn from this information. How are we going to set up the database? How are we going to organize this information? How are we going to use some outside tool to recreate the look and feel of this information so that we can use it effectively? We can get the timeline, we can understand the flow of information in this particular technological way in order to understand the impact for the client and prepare for depositions, know what we need to follow up on, on discovery, etc.
Briordy: Unfortunately, what you outlined is, and what we’re talking about is, still kind of a progressive approach. I think there are still a lot of teams out there who think of it as task execution. We’ll talk to you when we need to get the production out or something like that. You can see with 4Discovery, the lesson is, in this case, what happens when you are just the only time you loop in your vendor is when you kind of just ask them to do one or two things and that’s it. Just go do this.
Kelly: What I have always stated is that if you don’t have a lawyer who’s involved in the ediscovery process, you are missing out on a lot of key strategic discussions, key strategy decisions that you could be making, whether it’s putting information out from a production perspective and making sure that you’re managing a process for your client. I’m sure that you guys try to do things consistently at BI or when you get data in taking a look at that production very quickly. You immediately start reviewing documents, but who’s QCing the information to make sure that you got all the metadata you were supposed to get, that the documents don’t have huge gaps in the date range? A lot of times we’re getting information in so quickly and trying to use it to prepare for depositions. We’re not able to do that analysis on the productions. There’s so much there to be done with ESI, much more information that is available as evidence, and we gloss over it, we lose a lot of it because we don’t allow someone with that expertise to be involved. It feels like not the norm.
Briordy: It’s why the kind of team experience is important, because you want to empower your partners, your vendors, to kind of speak up and bring those issues if they spot them to you. You want that feedback loop. Listen, you have to scope things appropriately. You can’t boil the ocean with everybody in the team. There are certain roles. To your point, if they’re not encouraged to kind of raise a flag, if they notice that there’s something missing in the metadata or there’s just something odd about gaps in date ranges or whatever it is, you’re going to miss something that could be really valuable to the merits of the case.
Kelly: One of the things that we talked about is had somebody who had any real basic ediscovery knowledge been involved in a conversation with Brent Duke, or in this case initially, none of these problems would have even come to light. The very fact that District Judge Johnston raised them in 2014 and said he didn’t want to see them, and then every single thing that he said he didn’t want to see came to light over and over again is what ultimately leads to sanctions here. I was kind of surprised, given the level of conduct here, that there were not more severe sanctions than were offered. But as you read, and we’re going to cover in more detail next week, the analysis that the Court went through on each individual section of the rules related to sanctions and the availability of them, it becomes pretty clear why he doesn’t give terminating sanctions here.
One kind of point back to thinking about the players that you and I’ve talked about is that not Levins, who was the initial lead trial counsel, but there was a subsequent lead trial counsel, who really was focused on the merits and believed the ESI issues were kind of the tail wagging the dog and thought they should be focused on the merits. The Court said the ESI here is the merits. These claims are about the ESI. Is there a meta tag on the website and did this SEO expert put it there? Well, we don’t know because we don’t have this Yahoo chat and we should. You clearly had a duty to preserve it. You should have known it. You fell down on your basic ediscovery obligations, and therefore —sanctions.
I found this case really instructive from a perspective of what appropriately tailored sanctions are for a particular case. I think that they’re a little bit all over the board.
Briordy: Well, and it’s obvious that this particular judge is well-versed in ediscovery. I think he’s kind of an ediscovery expert as far as even just judges go. I think he was trying to be precise in terms of the outcome of his sanctions. On some level, I don’t know if you would say this is worse, is it better or worse to kind of just get things cut off versus having to carry all the various sanctions and make it through to the finish line with this? I don’t know. Part of that is because it’s kind of like this comedy of errors, almost. I think I read the opinion as certainly upset about what happened, but it’s not exactly like an intentional, hey, those are the smoking gun — at least not from counsel perspective.
Kelly: He does go to lengths to say that he did not find that there was bad faith, intentional misconduct, and anything other than as it pertains to Brent Duke. He felt like he very clearly concealed the nature of sources of information that he should.
There’s one of the quotes from the case, and there are so many, including many of the pejorative statements that the Court makes in which the Court says, “Electronic discovery is-and has been for years-ubiquitous. The multiple failures in this case were fundamental. Alone, each failure was problematic. Collectively, they were cataclysmic.” I think that’s just very appropriate. Just over and over and over.
Takeaways. Get somebody involved from the get-go and make sure that you’re setting yourself up correctly in dealing with ediscovery, and have that person monitoring and supervising your processes as you go through. Document everything that’s happening. The Court also makes a note as a bit of a nod to Zubulake, but many other decisions who’ve said it since, perfection is not the standard, you need to take a reasonable approach and make reasonable decisions and be able to stand up before the Court and articulate that you’ve taken the steps that you should take as a basic ediscovery on your obligations.
Briordy: Consistent, defensible practices, being transparent. It goes against the nature still, I think even in 2021 now, of a lot of maybe seasoned trial lawyers to kind of not show your cards. If nothing else, this case is showing you that how you conduct ediscovery is almost, if not as important, as the merits of the case. Look, it can trump the merits if you do it incorrectly. I think the obvious big picture takeaway from the opinion.
Kelly: Yeah, I would agree. There was one final thing that I wanted to address with you. This is a question that I get on almost every panel that I speak on the Rule 26(g) obligations, which the Court addresses here, and which are a basis for sanctions here. That Rule 26(g), which we’ve talked about on the Case of the Week multiple times, say that the lawyer signing the disclosure, signing that the requests for production are complete, that you are at the whim of your clients if the client collects their own information, and how do you deal with difficult clients who don’t want outside counsel involved in the process of collection? What are your thoughts?
Briordy: It’s a really good question, and I think that the subtext for all of this might be how difficult those conversations are sometimes. That’s why I say that the drama of this case really goes to the attorney-client relationship in general, as well as ABA model ethics rules and all that other stuff. I think the way that you have to frame it when you’re counseling your client is very similar to how you approach the merits of the case. This is the law. I am simply doing this because we need to make sure that for our case to be sound, that we have checked these boxes and this is an obligation that is as important as the merits of the case, and in fact, if we get it wrong, could impact the merits of the case.
Sometimes they are difficult conversations, but here’s a lesson I learned a long time ago. No matter whether you’re in-house or outside counsel doing ediscovery. If you’re ediscovery counsel, however uncomfortable those conversations are, when you have to push back against your client and say, is that really everything? What about this? What about this? I can say, especially in-house now, the impact on the business is a real thing. This is not a small consideration or a small challenge sometimes to get this done. At the end of the day, no one is going to remember those uncomfortable conversations, but they will hold you responsible for not challenging them. The client will hold you accountable for not saying, well, why didn’t you ask about this? The facts of this case are a little bit different because of the role Duke played and was he kind of gaming things from the get-go. Ultimately, if you have a client who’s not cooperating with you, they’re putting your license in danger and you have to think of it that way.
Kelly: That’s what happened here. Ultimately, the counsel withdrew once Duke finally said, I have this GoDaddy account that I’ve known about for six years or seven years that I’m suddenly telling you about a few days before you’re supposed to file a response to a sanctions post. The counsel all said, we’re out, we’re done. You can’t keep laying this on us. I do think that’s important. The way that I approach it is I would rather have a difficult discussion with my client than a difficult discussion with the court.
With that, we’re going to wrap up this Part 1 of the DR Distributors decision with District Judge Ian Johnston. Thank you so much, Briordy, for joining us as our guest today. It’s been great to be able to have this discussion with you and get your various perspectives.
Next week, we will pick up with Part 2 of the DR Distributors case, where we will go through the different basis for sanctions that District Judge Johnston assigned and his thorough analysis.
Again, I do recommend this decision for all litigators to read. It is long. It will take you a few hours to get through it, but you need to read it. You need to understand what your ediscovery obligations are and what the Court is going to hold all of your litigators to. If you’re supervising litigation or you’re involved in litigation, you need to read this decision. You need to understand it.
On Tuesday, February 16, 2021, Kelly Twigger will be joined on ACEDS‘ #CaseoftheWeek by Doug Austin of eDiscovery Today for Part 2 of DR Distributors v. 21 Century Smoking. Kelly and Doug will analyze the basis for imposing sanctions under FRCP 26 and 37.
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