Fashionable Sanctions

When sanctions are issued in Chicago on St. Valentine’s Day, you can imagine how the losing party might feel. 

The Defendants in a sexual and racial discrimination, hostile work environment, harassment and retaliation case did not properly preserve evidence or respond to specific discovery requests.  Northington v. H&M Int’l, 2011 U.S. Dist. LEXIS 14366 (N.D. Ill. Jan. 12, 2011), hereinafter Northington 1 and Northington v. H&M Int’l, 2011 U.S. Dist. LEXIS 14378, 1-2 (N.D. Ill. Feb. 14, 2011), hereinafter Northington 2.

The failed preservation can be summarized as 1) the failure to issue a litigation hold; 2) failure to direct individuals to preserve ESI in their possession; and 3) failure to follow-up with custodians on whether they preserved ESI or other relevant documents.  Northington 1, at *43-44. 

Just as a tailor measures for a suit, the District Court fashioned the appropriate sanctions against the Defendant.  While the Court denied the Plaintiff’s request that the Defendant be “barred from asserting a defense as to liability based on its discovery misconduct,” the Court ordered the following on searching the Defendant’s ESI:

Defense counsel is ordered to search all of the defendant’s electronic media (including its email system) and hard copy files that might contain information responsive to any aspect of the plaintiff’s original Request for Production V. With respect to electronic media, defense counsel should not limit the key search terms to the three terms previously used by defendant, but must also include misspellings of plaintiff’s first name as well as other key terms reasonably related to each of the topics set forth in Request for Production V. Those searches should cover the time period of February 2006 through October 2008, inclusive. Defense counsel should complete such searches and produce any nonprivileged, responsive documents not previously produced to plaintiff, within thirty days from the date this order is entered on the court’s docket.

Northington 2, at *2-3. 

The Court further ordered an adverse inference instruction of when the Defendants’ duty to preserve triggered and that the Defendant failed to preserve emails and other electronically stored information.  Northington 2, at *3.  Additionally, the Defendant was barred from arguing the absence of any discriminatory statements was not evidence that such damaging statements were not made.  Id. 

Bow Tie Thoughts

Judges, and attorneys, are becoming more sophisticated in addressing search term issues.  In this case, the Court ordered the Defendants to 1) search within specific date ranges; 2) include the Plaintiff’s search terms; 3) and include “misspellings of plaintiff’s first name as well as other key terms reasonably related to each of the topics” in the Plaintiff’s request.   Northington 2, at *3. 

The Judge showed an admirable level of understanding that search terms should include alternative spellings of keywords.  Key players might have nicknames, or variations in spelling, that frequently need to be included in a search.  Additionally, the phrase “other key terms reasonably related to each of the topics” introduces search terms that should be discussed at a meet and confer.  While one party might be in a better position to determine more effective search terms, this area should be discussed at a meet and confer between the parties.  

Narrowing data by date helps control the volume of ESI to be search to relevant time periods.  This helps control the amount of data that ultimately has to be reviewed and proposed after keyword searches.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg in 2013, 2014, and 2015, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.