This week’s case covers Part 2 of the DR Distributors v. 21 Century Smoking decision from District Judge Iain Johnston in the Northern District of Illinois. Last week, in Part I, we discussed the lawyers’ violations of their ediscovery duties; this week in Part 2, Doug Austin joins Kelly Twigger to discuss the multiple bases for sanctions under FRCP Rules 26 and 37 and what lawyers need to know when deciding under which rules to seek sanctions. Further, they address what bases on which the Court declined to issue sanctions and why.
As Kelly mentions in both Parts 1 and 2, this decision in DR Distributors will be one of the decisions, if not the decision, of 2021. This case is a must read for practitioners, heads of legal departments and professors.
Kelly Twigger: I am very pleased this week to have a guest joining me. Please welcome someone you all know and love from the industry, Doug Austin.
Also, before we dive in, I want to give a huge shout out to Sheila Grela, who is a paralegal with Procopio in San Diego. Sheila has a lot of roles in the industry with the San Diego Paralegals Association, I believe, with Women in eDiscovery and is doing some presentations with ACEDS. She’s a hugely knowledgeable person in the industry and submitted some questions to us for us to look at for this week’s broadcast, which was fantastic. Thanks, Sheila, and we would encourage anyone else who has some interest in submitting questions or participating, we’d love to hear from you, please reach out to me.
Okay, getting into our case for this week, we are looking at part two of the DR Distributors v. 21 Century Smoking case. This was a decision from January 19, 2021, from Judge Ian Johnston, who is a United States District Judge. We covered many of the facts in detail in Part 1. I want to just cover them very briefly here, just so we have a little context for our discussion today. I am going to tell you again that this is a decision that if you just choose one case to read for right now, you should read this decision. It is long, but it lays out what you need to know about your ediscovery obligations and your ability to seek sanctions, as well as obligations on preservation.
Quickly, in terms of the facts, the two parties here are competitors in the e-cigarette industry. My last Google search was that that was a $12 billion industry. We’re talking about a lot of money that’s involved here. This is a trademark infringement case where DR Distributors alleged that 21 Century Smoking included DR’s trademark as a meta tag in their website and drove traffic directed for the plaintiff to the defendant’s website. By virtue of that sort of SEO tool, the defendant CEO from 21 Century Smoking used two different web email accounts from Yahoo and GoDaddy, as well as Yahoo chat, to communicate with their overseas SEO provider, who probably did the work to insert the meta tag during discovery.
In the case, there were multiple failures articulated by the Court following a five-day evidentiary hearing to disclose sources of ESI, but also by counsel. There was a failure to preserve both the web email accounts and the Yahoo chat, which resulted in spoliation of Yahoo chat and GoDaddy emails. No legal hold, no custodian interview conducted. Documents identified after the close of discovery were produced, not in the normal course of production, but in response to a summary judgment motion. A failure to identify those web-based email and chat until three days before a response to the sanctions motion was due.
There’s a lot more extensiveness about the facts in Part 1. We looked at the lawyers’ actions and how they broke down, and we discussed what’s important in cooperation for a client here. We’re going to focus on the review of the Court’s imposition of sanctions. The sanctions issued here were extensive, but not terminating sanctions. That’s what’s really key. We’re going to kind of dive in, and this is where I’m going to turn it over to Doug just a little bit. Doug, before the Court dives into the bases for sanctions under Rule 26(g) and the various sections under 37, he talks about not what he’s not going to find sanctions under. Can you give us a little bit of information about that?
Doug Austin: Sure, I think a lot of you out there are familiar with the 2015 rules changes in Rule 37(e), which addresses, and I think the main component that’s key with Rule 37(e) is for serious sanctions, including terminating sanctions, you need an intent to deprive. Before 37(e) and before 2015, you might often see severe sanctions for gross negligence, or even negligence in general, but they established that standard, which is a very stringent standard to meet, as of 2015. You’ll see a lot of cases, I actually covered a case years ago that had a ruling for sanctions before the rule changes went into effect, and they appealed after the rule changes, and they pulled those sanctions back. This was, I think, a 2015-2016 kind of span in terms of those two rulings in this case. While District Judge Johnston felt that they had made a lot of mistakes, he did not see intent to deprive on behalf of the attorneys with regard to all of the failures that they had. They did a lot of things wrong, and they certainly failed to live up to their obligation from an ESI standpoint, but he found that they did not do it intentionally. They did not intend to deprive the other side of evidence. They just did a poor job of making that evidence available when they should have.
You and I, Kelly, talked about that a little bit yesterday, and one of the things we talked about is intent to deprive is about the party’s intent to deprive. Certainly, one of the things he pointed out in the decision was how Duke made some false representations and certainly didn’t volunteer that certain evidence was not being collected. From your standpoint, what are your thoughts about that from an intent to deprive standpoint? Do you think maybe he could have argued intent to deprive in the case of the actual client?
Kelly: Well, I think that what we see here is that, based on District Judge Johnston’s decision here, we see what many people feared, and many people argued at the Duke Conference prior to the change in the rule in 2015. That is that you have to have an actual act of destruction or that shows an intent to deprive in order to meet this standard. That is a very, very high bar when it comes to bad faith and intent to deprive. I think that’s what everybody feared at the Duke Conference, that this change to the rule was going to be very defense-leaning because, as you mentioned, gross negligence — as I think we probably pretty clearly had in this case — isn’t going to be sufficient to allow you to get to terminating sanctions. Is that consistent with existing case law on terminating sanctions? It probably is, but I think that we are starting to see a lot of clarification from courts on what is really required to get terminating sanctions.
Now, as we get into the basis for sanctions, you’re going to see that the judge gave every other form of sanctions that was available to him here other than those terminating sanctions. He does evaluate that, although there was very clumsy lawyering and a number of distrust on the part of Brent Duke, who was the CEO of 21 Century Smoking, and who clearly had knowledge of the sources of ESI that he was not disclosing, that the problem was that spoliation occurred because information rolled off on the GoDaddy account as part of an automatic deletion and the Yahoo chat information was actually deleted because Yahoo got rid of its Yahoo chat service, I think in 2016. All that information went away and was not able to be collected once it was legitimately disclosed to the lawyers. While those are not acts that can show intent, I don’t know if you found some email somewhere from Brent Duke that said to somebody, I’m going to just let this happen and then it’ll all be gone. Is that intent? I think that’s an issue for us here, and that’s an issue going forward. It’s a high bar now.
One of the things I wanted to mention, Doug, is that the judge, before he gets into Rule 26(g) and Rule 37, says specifically that he’s not going to order sanctions under inherent authority under Rule 11, Rule 56(h), or Rule 28 USC 1927 for a few reasons, two of which are because the rules provide for sanctions and that’s preferred, and also that inherent authority really requires bad faith that’s designed to obstruct the judicial process or to violate a court order. He specifically says clumsy lawyering is not enough. It’s a high bar.
Let’s talk about Rule 26(g). Doug, what were your thoughts here on the Court’s discussion on Rule 26(g)?
Doug: It’s interesting because with 26(g), I think I’m starting to see a few more cases where we’re seeing 26(g) sanctions. Obviously, that is the rule where you’re certifying a production that turns out to be flawed, or you don’t have the information you should have in certifying that production, that’s a lawyer’s responsibility is to make sure that they know what’s in the production and have managed that production process properly when they certify that.
Kelly: One of the things of note here is that the Court specifically says that Rule 26(g) does not require subjective bad faith.
Doug: Right, but it does require that the lawyer understand what they’re certifying to.
Kelly: They have to make a reasonable inquiry. I think the language he uses is they have to make a reasonable investigation to assure that their clients have provided all available responsive information and documents and cannot take a client’s representations at face value.
Doug: Exactly. and they obviously didn’t do that here, as District Judge Johnston pointed out. One of the cases that I think we have a link to here is the Optronic Techs., Inc. v. Ningbo Sunny Elec. Co. case, where in that situation, the defendant received sanctions as well because the defendant’s lawyer, the outside counsel, they were representing a Chinese company, and they were asked to go talk to somebody who could describe with specificity and authority how the documents were collected and searched for. The Chinese client came back and said, we can find nobody here who can describe with authority and specificity how that was done, so they were sanctioned. Again, it’s one of those cases where the outside counsel firm certified a production that they didn’t do the reasonable investigation for. It’s notable that in both cases, the counsel ultimately withdrew from the case. I think in both cases, the counsel were complaining that their client was difficult to deal with. Certainly, that can happen. You sometimes have a client that can be difficult to deal with. That’s one of the things that’s important to do is try to understand as much upfront about what sort of problems you’re going to run into maybe before you even ever take the case.
Kelly: I think another aspect of Rule 26(g), and the Court looked at this in a little bit of detail, is allowing your client to self-collect. We’ve talked about this on the Case of the Week multiple times, specifically with regard to the EEOC v. M1 5100 Corporation case and Magistrate Judge Matthewman’s decision out of the Southern District of Florida. In this particular case, they let the client go in and decide what it was that should be provided. He gave them email and he gave them search terms and information, but essentially by not getting all of the sources of information, they violated Rule 26(g). That’s a significant piece here as well.
Doug: Kelly, just to interject one thing on that. To me, I think it’s really, I almost hate the term self-collection because the client is going to collect, but it’s really whether it’s a managed collection or not.
Kelly: That’s right.
Doug: The client is still probably going to collect that data. The only question is how actively is the attorney managing that process. Here, it’s really almost an unmanaged collection. That’s the key here. The attorney was not on top of what they were doing, not making sure they had all the sources of ESI accounted for. That was the real problem here. In the Magistrate Judge Matthewman case, they made the same mistakes, but they still had time in this discovery deadline to fix it. He didn’t sanction them there; he gave them time to address it. Certainly, in this case, it was well beyond that.
Kelly: That’s important, too. If you haven’t seen Part 1 of our discussion, this is a nine year old case. It started in 2012, and we’re looking at the decision from 2021 here on the motion for sanctions. The discovery closed back in 2015, and defendants continued to not only find information, but to not produce it and instead provide it on motion for summary judgment. And so there’s lots of places where information is produced outside of discovery here, and that’s a huge issue, and it comes out in the sanctions that the judge orders.
In terms of Rule 26(g), essentially the judge found that the parties had violated Rule 26(g) because they had not had substantial justification for failing to make a reasonable investigation here. Rule 26(g), this is important, allows the court to impose sanctions on the signer, the party that they’re acting on behalf of, or both. Because there are a lot of different lawyers that are involved in this case, the Court goes to a lot of effort to impose sanctions on the specific lawyers who are responsible for failing to do the reasonable inquiry and for signing the responses to the request for production.
What he did order here are costs and fees on multiple docket entries, which there are other costs and fees that are assessed on other areas on other Rule 37 sections, but ultimately the Court acknowledges that that costs and fees is going to be a seven figure sum. We’re talking about a substantial cost sanction here.
Let’s move a little bit to Rule 37(b) because there are multiple bases in Rule 37 that the Court discusses. He literally just goes through each section of the rule. As you’re reading this decision, I very much commend to you the Court’s analysis of each individual section of Rule 37(b) because he lays out for you the basis under which you can actually move under those various sections of the rule. We see in our practice a lot of sanctions motions that are not made under the appropriate sections of rules, a lot of them asking for inherent authority where there’s a rule provision that would apply, a lot of them asking for sections of the rule that do not apply. Read through the Court’s analysis here on each individual section, and let’s start with 37(a).
Under 37(a), the Court essentially found that where a party provides incomplete disclosures — and that’s what 37(a) applies to when you have incomplete disclosures — and that that section applied based on the defendant’s failure to search the GoDaddy emails which were not disclosed with the search terms as well as the additional ESI that was not produced which likely pertains to the Yahoo chat. Doug, anything to add on 37(a)?
Doug: Well, one thing he notes, of course, that it should encompass all the expenses that would not have been sustained had the opponent conducted itself properly. Again, that’s one of the instances where that opens them up to expenses because of their violation of 37(a).
Kelly: You’ve got not just the Motion for Sanctions, but you’ve got the Motion to Compel. You’ve got all the work leading up to the Motion to Compel, meet and confer, everything else. You’ve got all the information trying to go through the data once you do get it, so significant monetary sanctions. That’s 37(a).
37(b) is specifically about failure to comply with a court order. Under 37(b), you have to have failure to comply. You have to be able to state a specific order that the party has failed to comply with. Here, there was a June 15th order to produce documents relating to the SEO overseas contractor work, and that information was not provided. There was a basis here for sanctions under 37(b) because of a violation of a court order.
Just note that you have to have an actual court order in order to get sanctions under 37(b). If you’re in a situation where you know that you have a potential spoliation claim, but you have not yet moved to compel, you’ve had lots of fruitless meet and confers, but you have not yet moved to compel, it may be strategic for you to move to compel to get that order from the court so that you have a basis for sanctions under 37(b).
In this particular instance, the Court ordered multiple sanctions under 37(b). Again, another basis for attorneys’ fees against both Duke, who was the CEO witness from the defendant, and against Levins, who was listed as the trial attorney here. The defendants were also barred from using any information that was not disclosed by June 2015, which was the close of discovery, including expert testimony. That is a significant sanction. That’s one that Sheila raised in the questions that she asked about, Doug, she talked about whether or not the sanction of allowing the plaintiff to use the newly produced documents, but not allowing the defendant to use them, would be problematic. She’s really thinking about trial. It’s a great question from a practical perspective, if the plaintiff is allowed to use the documents that were produced by defendant, but the defendant is not allowed to use them, how are we going to handle that at trial? What are the motions in limine? They’re going to have to be made about the scope of information. If I ask you as a witness of the defendant about a document, but then your lawyer can’t cross or can’t rehabilitate your testimony, how is that going to work?
These documents were provided after the close of discovery. There’s nothing about a deposition of Duke noticed or mentioned in the case. You’d be asking questions at trial, blind, off these documents unless you make a motion. Sheila’s question is huge in terms of practical implications of this kind of situation. Do you have any thoughts on that one?
Doug: Well, certainly to me, this is potentially a case crippling sanction because of the inability for the defendant to use certain documents that could help their case. I agree with you, if we get that far, it would be very interesting to see what would actually happen if the plaintiff presented certain documents that fell under that that helped to their case. Can the defendant cross and bring in their own perspectives on those documents or not? Certainly, they weren’t just late, they were four years late. They didn’t miss it by a little, it was huge. That’s the thing that’s key here. To me, those are the most underappreciated kind of sanctions, the ones where evidence is excluded, because that can make or break your case. That’s going to be very interesting to see how they proceed from here when they can’t use that evidence. It’s really key to the core of when the defendants put the meta tag on the website and working with the SEO expert, a lot of that evidence ties into that. The fact that they can’t use that, it’s going to be very interesting to see what they can do from that point.
Kelly: Again, there’s just so much to unpack from this particular case. It’s a very instructive case, but if you’re using it to make an argument, you do need to consider the timeline of this case in terms of the severity of the sanctions. It is going to be very different. Much as you discussed, Doug, from the M1 5100 case, is that if there’s still time to deal with the issues in discovery, or there’s an ability to reopen discovery on a shorter time frame before trial, your sanctions aren’t going to be as severe. They have to be in line with what’s appropriate for the case.
Doug: Quick thought there. I’ve seen plenty of instances where there have been sanctions. What they’ve done is they’ve said, okay, you can do a 30(b)(6), or you can re-depose these witnesses, or we’ll reopen discovery for a period of time. They try not to make the types of sanctions that actually excludes evidence like was the case here. Especially if it’s close enough to the deadline. Here it was so far, it was so egregious, they really felt like they had no choice.
Kelly: This is not the first time these types of sanctions have been implemented. If you’re an eDiscovery Assistant user, you can go in, we have exclusion of witness and exclusion of evidence as specific tags. That, coupled with sanctions, in using the issue tags to search for case law, you can use sanctions along with the specific sanctions that are issued to be able to run searches for those. There’s a lot of cases over the span of the database, which goes back to mostly early 2000s, but that will show you that these are not new types of sanctions that the Court is issuing here.
Okay, I want to both cover the questions that we’ve got from Sheila, but also, I’m going to skate through a little bit here, Doug. The last two bases for sanctions that the Court mentions, which are Rule 37(c) and Rule 37(e). One point here specifically, the plaintiffs do not ask for sanctions under Rule 37(d) because they knew they were not available because Rule 37(d) requires that a request was not responded to. In general, all the requests were partially responded to, so it was not an appropriate basis for sanctions.
One of the things that I really appreciate about this decision here is how District Judge Johnston articulates that it’s important for parties to really understand what is available under these different sections of the rule and tailor their motions accordingly. There are places, several places in this decision, where the defendants did not understand the basis that they were arguing or they failed to address certain topics at all. The Court still undertakes the analysis it needs to, but it’s a very compelling decision from the notion of what you need to understand to be able to make an appropriate sanctions motion and also to be able to respond to one.
On Rule 37(c), that sanction became an issue because the party failed to provide information. The party failed to provide information, is barred from using that information unless it’s substantially justified or harmless. Rule 37(c) sanctions are automatic and mandatory. The Court lists that.
He also says here, and as you mentioned, Doug, this is a really egregious kind of situation in that the defendant engaged in dirty pool by trying to use information on summary judgment years after discovery was closed instead of actually providing the information. That is the basis on which they barred them from using any of the information that was not produced by June 2015. There were also fees that were at issue against Duke as the CEO of 21 Century Smoking because of his conduct. Then this is where the judge issued what we would normally refer to as an adverse inference instruction, but he doesn’t even call it that. He says that the fact finders will be informed of the defendants’ failures. At another point in the case, he talks about how it will be up to the district court as to how to handle it during trial. Ironically, he is now the district court, not sure how that plays out. Anything you have to add on 37(c)?
Doug: That’s the one thing that I’ll be interested to see, because like you said, he’s saying there will be an instruction without really calling it an adverse inference, but it kind of is an adverse inference, or at least a permissive inference. That’s the question. Certainly, adverse inference in the cases I’ve covered tend to be more a 37(e) intent to deprive type of sanction. He was careful in his terminology, and I don’t know if that will come back to be challenged. I would expect it would be, but it’ll be interesting to see what happens there.
Kelly: Yeah, I agree with you. Then his last basis for sanctions was Rule 37(e), which essentially provides for where there’s a failure to preserve ESI. That’s the sanctions base — there is failure to preserve ESI — and here we had GoDaddy emails that rolled off on automatic deletion and Yahoo chats that should have been preserved and were lost. That becomes about whether or not there was an intent to deprive, just as you just mentioned.
Let’s jump to one other thing I want to mention about the decision that is another reason to compel you to read it. The Court goes through the ediscovery process, and he calls it same as it ever was, right? The days go by, and he talks about the five fundamental steps of ediscovery and identification, preservation, collection, review, and production. I think there’s a really important quote that he lists, and there’s so many great statements that he throws out in his cases, but this one stuck with me. He says, “After 2004 and the Zubulake decisions, counsel who did not understand or take seriously ESI issues were playing Russian roulette. For sure, each litigation chamber does not contain a bullet but when one does, the consequences can be tragic.” I think we see a lot of that here.
He also goes into three assumptions that underlie the ESI discovery process that are very important. Competence of counsel, which we’ve talked about extensively in Part 1. Honesty of the candor of the client, which we clearly did not have here. You and I have had challenges with that with clients over the years. And also documentation. Documentation is a theme that if you’re a regular watcher of the Case of the Week. You know, I harp on repeatedly. The Court here discusses that documentation needs to be contemporaneous and also will allow you to defend the positions and the actions that you’ve taken.
Doug let’s turn a little bit to some of the questions that Sheila raised for us, which are great. She asked with regard to collection, is this opinion going to have practitioners challenge their clients’ choice of using self-collection? We talked a little bit about that. What are your thoughts there?
Doug: Well, again, I think that clients can self-collect. It’s just a question of whether it’s management, whether it’s managed or not. It’s a project management issue. Is the lawyer on top of it? Do they understand? Are they providing guidance on what to collect and from what sources? To me, there’s two components to the collection process. We’ve talked about them. One is the custodian interviews, because you’re flushing out the sources of ESI there. That’s going to go into the collection plan that you have. The other thing is you start to review what you collect, and you find sometimes other collection sources that you didn’t know of. That’s one of the things I think is key here. People think of the EDRM lifecycle as like discrete places you don’t move back from, and sometimes you find sources and you move back and do some more preservation collection. That’s one of the things that’s key here is you need it to be a managed process and sometimes even an iterative process.
Kelly: You do need to have somebody who knows how to ask the right questions. I mean, you’ve got these Rule 26(g) requirements. We’ve talked before on the Case of the Week about the ethics decision out of California that has three steps that the Court reiterates here. You’ve either got to be able to be competent on these issues and learn what you need to learn to handle them for your client. You’ve got to get somebody on board who can help you with that, or you’ve got to reject taking a case. In the middle prong having somebody on board to help you with that, we didn’t talk about this much today, but there was a provider here who was pretty knowledgeable, who would have been able to help with a lot of this stuff. What were your thoughts on the vendor’s role here, Doug? You’ve been on that side.
Doug: When District Judge Johnston talked about Gough and how frustrated he was about his role and the fact that he wasn’t asked to do more, unfortunately, sometimes the ESI vendor or provider doesn’t really have more of a role than what a lawyer defines for that company. That’s part of the issue here. Levins early on didn’t know what he didn’t know. Eventually started to realize what he didn’t know, tried to shift the blame to the ESI provider for some of the problems, and went as far as to say malpractice but then went ahead and used them again after saying that they were incompetent or what have you, which belied the idea. That was one of the keys there is they had somebody there who could have really helped guide them through the process. At some point, I think they realized they were in over their head, and they still didn’t do anything about it and tried to deny it all the way through. No, we didn’t make any mistakes, and I think that was a big mistake on their part, not addressing that.
Kelly: That’s what leads to a lot of the monetary sanctions that are added here and the exclusion. One of the other things that Sheila raised, which I think is a great point, is, does this opinion get applied differently to solo practitioners and small firms than it would as opposed to big law?
Doug: From my perspective, I’ve seen plenty of big law mistakes that rise to this level as well. I think we always think that solo practitioners and small firms have less of an understanding of ESI and ediscovery, and generally that’s probably true, but there’s plenty of lawyers and big law firms who don’t understand it either. It doesn’t matter what size firm you’re with. The obligation remains the same.
Kelly: That’s exactly right. You have the same obligations. If you are a practicing attorney, no matter what. It doesn’t matter where you are or what the size your firm is. One of the things that you will want to do is understand what your ediscovery obligations are going to be for a case at the outset and get someone involved who can help you understand the scope and cost of what’s going to need to be done to understand whether your case will support it or whether that means you need to make some early decisions. In general, if you get help or you learn how to do the things that you need to do for your practice, you should be able to do them in a cost-effective way that would be in line with the value of the case. There’s plenty of ways to do things cost effectively.
Doug: Well, and this case was an eight figure case. There was no excuse not to involve the resources to address what needed to be addressed. It wasn’t like there was a ton of ESI to collect and go through it either.
Kelly: Sheila also asked, what methods or protocols do we suggest attorneys use to inquire or verify that their clients did not overlook sources of ESI?
Doug: Well, there’s resources out there. I know eDiscovery Assistant has a sources of ESI checklist. That’s great. I think you also have a custodian interview questions. I have a list of custodian interview questions. Every time I do a custodian interview, I go through, figure out what questions I would want to ask, which questions don’t apply, maybe identify some questions that might be specific to that particular custodian and always customize it. To me, I think it’s one of those things you always kind of learn from and continue to update as you go through cases because we’re dealing with new sources of ESI we didn’t deal with a few years ago. You’ve got to be prepared for those and so forth. Again, documentation checklist has those things, and regularly update them so you can kind of be as prepared as you can be and then, like you said, document everything you’re doing because it’s going to help you down the road.
Kelly: Yes, absolutely. Checklists are a huge part of this process, but also being able to think about ESI issues. One of the biggest things that I talk about when we teach law school classes or we’re just doing instruction for attorneys or legal professionals is we want to start teaching you how to think about ESI. You’re using the same sources of ESI every single day that you come into play within litigation. You’re using your mobile devices, you’re using Slack, you’re using Microsoft Teams, you’re using email. You need to start thinking not necessarily about how you’re using them, but about how you would want to get that information for litigation.
Once you start thinking about ESI in those terms, the ability to put together a checklist like that for your clients will start to feel a little bit more natural. eDiscovery is like any other area of the law. The more you engage with it, the more you do it, the more comfortable you’re going to get with it.
The biggest thing I can tell you is don’t be afraid to ask a question you don’t know the answer to when you’re talking to your client. Go to the IT people and understand how Microsoft Office 365 works. If that’s the email client, or that’s the email system that your client is using. Where is their email hosted? Is the one question here that would have changed the entire outcome. We would not have been having a motion for sanctions here if the client had been asked where their email is hosted. Yahoo and GoDaddy, both email hosts. You’d logged into his Yahoo email; you would have seen probably that he had Yahoo chat as well because it’s right there on the homepage, and the Court even makes note of that. You’ve got to be able to ask the right questions, and most service providers are going to be able to sit down and help you put together that kind of checklist that you can use, or you’ve got to get someone engaged to be able to do that.
Doug: Yeah, and I think the willingness to ask those questions is key. There’s plenty of lawyers out there who don’t know, but they’re perfectly willing to turn to somebody for that help and make sure that they’ve got their bases covered. That’s the key.
Kelly: The last point here, Doug, and this is one that Sheila raised, but it’s one you and I had talked about as well, malpractice is rarely used when we’re talking about ESI and will this opinion change that? What do you think?
Doug: Well, I think in general terms, this opinion is this case is a significant outlier. Another question she asked, is the range of types of sanctions a sign of things to come? I think generally, no, because you don’t see this litany of mistakes in most cases that you did here. I don’t usually see the term malpractice being thrown about when it comes to that. This is kind of an unusual case here. I’ll also throw out that she asked, do you believe 8 hours of CLE is enough, is long enough for the attorneys to get the information they need? And no, I don’t, because they’re clearly needing a lot of information. It’s so unprecedented for a judge to order the attorneys to get CLE associated with ESI that he probably felt he had to start somewhere. He mentioned several resources, too, the Sedona conference principles and things like that. That a knowledge of that could make a big difference. Obviously, this is an ACEDS webinar, and going so far as to getting the CEDS certification would certainly put them in a great position, but the key is that you need to have regular CLE, not just 8 hours over a period of time, but regular through the years to really learn the basics of ESI and ediscovery.
Kelly: If you’re really going to try and stay up on what are the new sources of ESI and how do they get implicated when it comes to the rules and your obligations to preserve them, then ESI and ediscovery are areas where regular CLE is going to be important. I’ve been practicing for more than two decades, and there have been a lot of years where you think, man, I just want to get some CLE that’s going to be really practical and useful for my practice. That’s hard to do because there’s not always changes in the law. You don’t want to sit through the same CLE ethics presentation for 3 hours every two years, but in ediscovery, there are so many changes happening all the time that we need to be engaging with CLE on a regular basis. 8 hours is going to be a good start if you have good instruction that is concise and gets you to practical implications. I’ve never seen a judge order CLE on ediscovery before, that’s very rare.
I’m going to say a little bit more to the malpractice issue, and that is no lawyer likes to use the M word. In this case, the judge very clearly sets out what the ediscovery obligations are and have been since the Zubulake decisions in 2004. The question that you have to ask yourself as a lawyer is, if I don’t understand what those obligations are or how to meet them, am I fulfilling my obligations to my clients and am I meeting the standards for practice? That’s where I think the M word gets implicated. We haven’t seen anything go as far as we’ve seen this decision go, but I have had discussions with malpractice providers previously about engaging in education regarding electronic discovery because this is becoming an issue and I am quite certain that the sanctions that were awarded here are going to be submitted to a malpractice carrier at some point, I would imagine.
Doug: I’ll also add one last thing, which is there’s more free CLE out there than ever. I think since the Pandemic, so many people are doing webinars that are CLE approved. Actually, there might be a lack of basics, but certainly they’re covering the latest trends and the things that people need to be aware of and be thinking about. There’s plenty of CLE courses out there. Many of the providers are offering them and other resources as well. There’s no lack of resources. You’ve just got to go find them.
Watch Next Episode Live
#CaseoftheWeek streams live on the ACEDS YouTube, Facebook, Twitter, and LinkedIn company pages. Subscribe to the ACEDS social channels to be notified when we go live.
Catch the Replay
You’ll be able to read episode summaries and watch the recorded show right here on the eDiscovery Assistant blog or access the recorded versions from the ACEDS social media channels.
