As if it hasn’t been said often enough in True North and elsewhere: heads up, counsel! Staying abreast of current changes in information technologies and taking a proactive stance with your clients vis à vis their ESI (and what they’re telling you about it) is an expectation of the court.
As we noted our post “Technology Competence? Are You Talkin’ to Me?”, the imperatives of electronic information have changed the playing field forever. It’s now nearly impossible to pursue a major case without having to consider the technological methods and tools that created (and are needed to find) evidence and meet discovery obligations, while avoiding sanctions and keeping client costs in check.
Recent case in point: In the employment-discrimination action Brown v. Tellermate Holdings Ltd., Magistrate Judge Terence P. Kemp, commenting that “Discovery did not go smoothly,” noted the failure of counsel to understand how information in a commonly used database (Salesforce.com)—clearly relevant to the matter—could be obtained and produced in discovery, which resulted in repeated false statements to opposing counsel and the court.
“[T]he most comprehensive evidence of [the Browns’] performance,” wrote the court, “appears to be the salesforce.com information. But that information cannot [now] be trusted, and even a forensic computer expert has no way to detect what changes, deletions or additions were made to the database on an historical basis.” As a result, the court disallowed Tellermate from using any evidence that would tend to show the plaintiffs were terminated for performance-related reasons.
The court’s reaction should not be construed as a novel interpretation of the law; Schiendlin, in Zubulake called out counsels’ shortcomings in investigating and affirming the reliability of their client’s representation of the facts, and this has been the basis of sanctions in other matters ever since. Need we mention that Zubulake was in 2004? Ten years have passed, yet the imperatives of electronic information still appear to be a mystery to some attorneys.
It should be obvious by now that counsel need to take seriously their obligation to both examine and question what their clients tell them about the existence and availability of potentially responsive ESI. Sure, things have gotten more complicated, but ignorance of the basics and and a disregard for information gathering at this point should be considered nothing short of willful. Not seeking an understanding of the characteristics of relevant ESI these days is the paper-world equivalent of saying, “Sorry, your honor, I didn’t ask about whether there could be text on both sides of a document and my client didn’t mention it!”
Ignorance may be bliss, but not if the court isn’t happy.