In a case involving claims of copyright infringement of fabric design, the tapestry of the Plaintiff’s discovery production was challenged, including allegations the Plaintiff:
Neglected to search for and produce several categories of documents; and
Deleted relevant emails.
The Defendants sought an order permitting a forensic examination of Plaintiff’s computer files based on the allegations the Plaintiffs deleted relevant emails. Prestige Global Co. v. L.A. Printex Indus., 2012 U.S. Dist. LEXIS 63550, 6-7 (S.D.N.Y. May 3, 2012).
However, the Defendants/Counter Claimant claims did not have the abrasion resistance to withstand judicial review.
Spinning a Judicial Opinion
Judge James Francis IV is no textile apprentice when it comes to discovery disputes. The Court quickly found the Defendants failed to show the Plaintiff did not conduct an adequate search for discovery. Prestige Global Co., at *7.
The Court explained that the Defendant relied on testimony from one witness who said she was not shown the Defendant’s discovery requests and that she was not asked to search for “many” of the documents identified in the requests. Id.
Judge Francis explained:
[T]here is no requirement that a particular witness, even one designated under Rule 30(b)(6), conduct her own search for documents. Counsel, working with whoever may be the relevant custodians, generally search for documents responsive to a discovery request, and, according to Family Dollar, that is precisely what occurred here. Furthermore, Family Dollar has identified by bates number the documents that it produced in each of the categories about which Printex complains.
Prestige Global Co., at *7-8.
The Court held the Defendant made no showing that the Plaintiffs had engaged in spoliation of evidence and could have warranted a forensic examination of a computer hard drive. Prestige Global Co., at *8-9.
Spoliation, in its simpliest terms, requires that a party violated the duty to preserve. Prestige Global Co., at *8-9. The duty arises when a party “reasonably anticipates litigation.” Prestige Global Co., at *9-10.
The Court held that there was no evidence that the emails subject to the spoliation claims were deleted when the Plaintiff could have reasonably anticipated litigation. Prestige Global Co., at *10.
As the Court explained:
The garments containing the accused design were produced for the 2008 and 2009 seasons, and any e-mails relating to them were in all likelihood deleted by the end of 2009. Yet, Family Dollar had no preservation obligation until March 2011, when Family Dollar first learned of the claims because Printex filed suit against it in California. Therefore, no forensic examination is warranted.
Prestige Global Co., at *10-11.
Bow Tie Law
There are two interesting issues in this case: searching for responsive discovery and the duty to preserve.
On a fundamental level, the duties of competency and candor to the Court require adequate searches for relevant discovery. However, in a company of 3,000 individuals, that does not necessarily mean that everyone in the company subject to the duty to preserve must conduct searches for responsive ESI. Moreover, that could lead to the “fox guarding the henhouse” situation best avoided in eDiscovery.
The concept of “relevant custodians” is one that should not be forgotten by attorneys. Many companies have email and content management systems that records managers and/or ESI consultants can search for responsive ESI. This requires client interviews to determine the relevant custodians and understanding not just who was involved in the facts of the lawsuit, but any terms of art they used in communicating and what technology used in the normal course of business to communicate.
After a content management system is used to enact a litigation hold and export ESI for data reduction, there are several options for attorneys conducting review. Deploying software with data analytics that can learn from a skilled reviewer, enabling the software to “predict” other responsive ESI is one option; Early Case Data Assessment software is another to narrow a dataset to relevant ESI; at a minimum, attorneys should have the data de-duplicated and other data reduction strategies commonly used by litigation support providers before beginning traditional review.
The “triggering event” for the duty to preserve is a fact intensive exercise for many attorneys. They need to understand both their client’s data retention and destruction policies (let alone whether the client was following their policies) and when the duty to preserve began.
ESI that is destroyed as part of regular business operations without a duty to preserve is not subject to spoliation challenges. However, this requires that a party understands which of the 14,000 records retention laws in the US apply to their company; they follow their data retention/destruction policy; and that duty to preserve was triggered after data was destroyed in the regular course of business.