It’s not often that I hear of an eDiscovery case that so clearly supports the belief that law firms and corporate legal teams clearly benefit from including a competent eDiscovery Manager/Administrator on their staff. Many thanks to Ralph Losey for posting an excellent review of the case on his e-Discovery Team website here. The case referred to is
Abbott Laboratories, et al. v. Adelphia Supply USA, et al., No. 15 CV 5826 (CBA) (LB) (E.D.N.Y. May 2, 2019), well-presided over by Judge Lois Bloom. Rather than repeating what Mr. Losey describes so well of the egregious actions by the defendant in this matter, I’d like to emphasize the importance of having that ethical and uncompromising eDiscovery Manager to conduct a responsible eDiscovery process.
One of the outstanding features of this case, as Mr. Losey points out, was the apparently first use of the term “search terms designed to fail” by a judge when describing the fraudulent actions of the defendant. In this matter, the defendant blamed their attorney (naturally) for not including often-used abbreviations for at least two very important search terms; in fact, the abbreviations were commonly used, the defendant knew this, and it became apparent that they were not included on purpose in the hope that relevant emails would not be discovered. Surely to the defendant’s deep regret, Judge Bloom was not one to be easily fooled; she ordered the defendant’s email server to be retrieved and contents searched in a competent manner. To everyone’s supposed surprise, viola! the undiscovered and damning emails suddenly appeared. This totally sanctionable act by the defendant was the source for the judge’s unprecedented comment that the defendant ordered those responsible for conducting searches to use “search terms designed to fail”. In other words, it was not just oversight or incompetence that caused the fail, it was an overt action to prevent discovery of key information. Through witness deposition, the court was able to determine this was a conscious decision on the defendant’s part, and they were justifiably sanctioned.
Now, there were other incompetent actions in this case as well, including overlooking or not identifying additional key custodians; poor custodian interviews or follow-up on data collections; ignoring obvious gaps in collected data; and so on. And of course the inevitable finger-pointing, by attorneys and the client turning on one another. All of this points to one clear fact: the enormous demands of the eDiscovery process illustrates the need for a competent and independent eDiscovery Manager – independent even if that Manager is a direct employee of the company. And independent meaning able to make (and enforce) ethical and responsible eDiscovery decisions regarding the entire legal hold process. That statement opens the door for me to add what I consider the essential qualifications needed by every eDiscovery Manager, who must be: Ethical; Consistent; Responsible. These qualities combined describe the Manager (and the eDiscovery process BTW) as being competent and defensible. A law firm or corporation can not expect or require anything less.
Attorneys, whether in-house or as outside counsel, have one obligation: to do “lawyer things”. It’s what they are paid to do, and expected to do. While the eDiscovery tasks discussed here can be seen as part of an attorney’s legal duties, they are in large part support tasks; they can be responsibly assigned to a trained and experienced eDiscovery Manager, thus allowing the attorneys to focus on those activities they are highly trained to do. And keep in mind – most in-house attorneys are NOT trained or experienced in eDiscovery processes or requirements; this gap in law school curriculum has been increasingly pointed out in articles by legal experts. But even if, or when, outside counsel proficient in eDiscovery is brought in, an eDiscovery Manager is essential to professionally represent the client’s interest and actions, as well as ensuring that defensible, consistent and knowledgeable processes are followed. This Abbott Labs case is the best example of what happens when those requirements are not met.