E-Discovery Pitfall: Court Sanctions Lawyers & Client for Lackluster Data Search

Guest Commentary

Bradford E. Biegon, Of Counsel, Hollingsworth LLP

Mr. Biegon recently authored a Washington Legal Foundation Legal Backgrounder, Rules of Evidence as Anchor:  Can They Ground a Spoliation Law Adrift on the Floodtide of Discovery?

 

Sanctions the Southern District of New York Bankruptcy Court recently imposed on a plaintiff for not timely identifying and locating electronically stored information remind us that, although data storage media have changed, old practices for collecting client information are as applicable as ever.

In re A & M Florida Properties II LLC, 2010 WL 181881 (S.D. Bnkr., Apr. 7, 2010), sanctioned plaintiff because plaintiff and its counsel were unaware that plaintiffs’ employees stored e-mail in both live and archived folders and did not search the archive folders holding thousands of responsive e-mails.  Consequently, “[p]laintiff’s counsel did not fulfill its obligation to find all sources of relevant documents in a timely manner.  Counsel has an obligation to not just request documents of his client, but to search for sources of information.” Id. at *6 (emphasis added). See also Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004). Continue reading