This is Part 3 in a multi-part blog discussing various critical requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1 and here to read Part 2]..

After you have assessed the discovery needs and issues in a given matter, and you have implemented appropriate preservation mechanisms, an advisable next step is to analyze and understand your client’s electronic information systems and the ways in which that data is stored.

Because each organization implements its own combination of hardware (enterprise servers, local desktops, departmental servers, hand-held devices) and software (the Microsoft Suite, Salesforce Business, Zoho One), this may be a good time to consult with a technical expert.  Indeed, if the client has an in-house IT team, it is critical to coordinate efforts with that team.  They will be able to educate you on what data exists, where it resides, and for what period of time.  This information will allow the attorney to assess the ESI that exists in the context of the legal scope and likely discovery obligations.  It may also be worth the expense of retaining a third-party vendor depending on the circumstances of the case, and the client’s in-house abilities.  If you don’t fully understand the systems in place, the way in which data is stored in those systems, and for how long, you run the risk of overlooking sources of potentially relevant ESI.  You also run the risk of committing to your adversary to produce data that, for example, has not existed for the last 6 months because of the client’s auto-deletion policy.

Have questions?  Please contact me at kcole@farrellfritz.com.

In this single-plaintiff employment discrimination case (Bailey v. Brookdale Univ. Hosp., 2017 U.S. Dist. LEXIS 93093 (E.D.N.Y. June 16, 2017)), counsel for the parties purportedly met and conferred as directed by the Court and, thereafter, entered into an ESI agreement (“Agreement”).  The Agreement was presented to the Court and represented to be the product of mutual negotiation.  As a result, the Court So-Ordered the Agreement and its terms.

During discovery, Bailey advised the Court that he was no longer able to comply with the Agreement because the data production costs would cause an economic hardship. Specifically, he claimed the cost of production – estimated at $2,000-$3,000 – was unduly burdensome in light of his personal financial situation, notwithstanding the Agreement.  At the Court’s request, Bailey submitted an affidavit estimating the cost of production and that such a cost would inflict a “severe financial hardship” on him given that he earned approximately $90,000 annually and was the sole provider for his family of five.  In evaluating Bailey’s grievance, the Eastern District considered cost-shifting to protect Bailey from incurring an undue burden or expense. For cost-shifting to be properly granted, however, there must be sufficient proof of economic hardship and evidence that the requested data is inaccessible.  The Court found neither was established by Bailey. Nonetheless, the Court found that the Agreement proposed by Defendants was of a type, “typically utilized in a more complex litigation involving multiple parties and corporate entities” and had no applicability to a single plaintiff.   As a result, the Court concluded that Bailey’s counsel did not engage in meaningful discussions with his client regarding the terms of the proposed Agreement and what costs might be incurred by producing the information in the format the defendants sought. Likewise, it further appeared to the Court that Bailey’s counsel did not engage in a meaningful meet-and-confer session with opposing counsel, and did not thoroughly review the Agreement prior to signing it.

The Court did not find sufficient grounds to terminate the Agreement, and instead ordered partial cost-shifting [so that Defendants received the form of production they negotiated for], requiring the defendants to bear 40% of discovery costs and Bailey’s counsel, rather than Bailey himself, to bear the remaining 60%.

This case serves as an important reminder of counsels’ obligation to engage in good faith in all aspects of the discovery process – including negotiating an ESI production protocol.  Here, the Court was unwilling to revise the Agreement, and instead required Bailey’s counsel to abide by the terms of the Agreement and pay for the production.  This case also serves as an important reminder of our duty, as lawyers, to be competent in the law and the technological world in which we practice.  Indeed, as attorneys practicing in today’s ever-increasingly electronic world, we must remain abreast of the intricacies involved in electronic production and the costs associated with that ESI.  (See earlier blogs discussing duty of competence)

Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016)

In this case, pending before the Court was a motion by Armstrong Pump Inc. (“Armstrong”) to compel formal production of certain documents that defendant Optimum Energy LLC (“Optimum”) considered the functional equivalent of its proprietary source code.  This “formal production” Armstrong sought to compel consisted of 46 documents (305 pages) that Armstrong previously viewed during a “document and source code review” conducted pursuant to a strict protocol.  During that review Armstrong was permitted to attend with two outside counsel and two experts.  Moreover, Armstrong was able to print – also under strict protocol – certain of those documents.

In support of its motion to compel, Armstrong now argues that the reviewed documents did not contain “actual programming” and thus were able to be produced under the parties’ protective order for discovery without any additional protections designed to protect source code. Optimum argued in response that the documents were “functionally equivalent to source code” and should not be subject to production.  Specifically, Optimum contended that the documents contained enough technical information including (in detail) the functions, logic and algorithms implemented in Optimum’s products to “allow a software engineer to build its proprietary source code based on that information.”

Ultimately, the Court reasoned that discovery had “reached the point of diminishing returns” and declined to compel production, with limited exceptions.

In reaching this conclusion, the court first addressed the effects of the 2015 amendments to Federal Rule 26, reasoning that “proportionality has assumed greater importance in discovery disputes” and that the amended rule is intended to encourage more aggressive efforts from the judiciary to discourage discovery overuse. The court continued:

Discouraging discovery overuse does not end with the early stages of a case, however. Implicit in both the language and the spirit of the 2015 Amendments is the obligation, at any stage of a case, to prevent parties from expending increasing time and energy pursuing diminishing returns. Calling a halt to the pursuit of diminishing returns often will overlap with an assessment of duplicate or cumulative discovery. Sometimes the additional discovery sought technically would provide nominally probative information not yet in the parties’ hands. Either way, when adding a few more pages of documents requires five or six inches of motion papers, and when those few more pages would be added to over one million pages of total discovery, numerous pages of expert reports, and transcripts from depositions of all of the relevant players, there exists a point beyond which courts have to tell the parties that if they cannot yet prove their claims then they probably never will. See Alaska Elec. Pension Fund v. Bank of Am. Corp., No. 14-CV-7126 (JMF), 2016 WL 6779901, at *3 (S.D.N.Y. Nov. 16, 2016) (“Rule 26(b)(1)’s proportionality requirement means [that a document’s] ‘marginal utility’ must also be considered.”) (citations omitted); Updike v. Clackamas County, No. 3:15-CV-00723-SI, 2016 WL 111424, at *1 (D. Or. Jan. 11, 2016) (“There is a tension, however, among the objectives of Rule 1. As more discovery is obtained, more is learned. But at some point, discovery yields only diminishing returns and increasing expenses. In addition, as more discovery is taken, the greater the delay in resolving the dispute. Finding a just and appropriate balance is the goal, and it is one of the key responsibilities of the court in managing a case before trial to assist the parties in achieving that balance.”).

The court then turned to the discovery specifics in the underlying case and concluded that discovery had “reached the point of diminishing returns.” Indeed, discovery had been ongoing for six years and the parties exchanged more than 1,600,000 pages of documents.  The Court listed a litany of critical case development failures along the 6 year discovery path and concluded it hard to believe that 150 pages of already reviewed but not printed documents would definitively prove what six years of discovery could not.

This case serves as a further reminder that discovery is not limitless.  Indeed, there is little tolerance for cumulative discovery and proportionality is the key inquiry under new federal landscape.

The amendment to Federal Rule of Civil Procedure 26(b)(1) (which defines the scope of permissible discovery) did away with the timeworn “reasonably calculated to lead to the discovery of admissible evidence” standard.  In its place is now the “proportionality standard,” which explicitly imposes a responsibility on litigants to tailor their discovery requests to account for the significance of the information requested, and the cost of gathering responsive information:

Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). (emphasis added)

Although many courts have applied the revised Rule 26 during 2016, the District Court in the Eastern District of Pennsylvania recently reminded practitioners that proportionality is a critical factor.  In First Niagara Risk Mgmt. v. Folino, 2016 U.S. Dist. LEXIS 106094 (E.D. Pa. Aug. 11, 2016), which involved the purported violation of a non-compete agreement, the plaintiff moved the Court to compel a discovery request. Specifically, the plaintiff requested that the Court allow its e-discovery vendor to search the defendant’s personal electronic devices and email accounts for a particular set of agreed upon search terms. The defendant objected stating that “the request is overly-broad, costly, and burdensome.”  Although the Court agreed with defendant that the “request was rather broad,” the Court found the request “proportional to the needs of this case.” After verifying that the information requested by the plaintiff was relevant to the case, the Court considered the individual factors in FRCP 26(b)(1).

Specifically, using the factors set forth above, the Court found the issues were “of grave importance” to the plaintiff, the defendant is the sole source of access to the important information, and the plaintiff “needs to conduct broad discovery to uncover the scope of [defendant’s] misdeeds.” The Court granted the motion to compel, and explained that, “[w]eighing these factors makes it clear that the potential harm [plaintiff’s] discovery requests may impose on [defendant] does not outweigh the presumption for disclosure of these requests.”

On October 4, 2016, District Judge Jon S. Tigar issued an opinion every federal court practitioner should read (Rodman v Safeway, Inc., [11-cv-03003] [N.D. Ca.] [JST]).  The decision serves as an important reminder that counsel has an obligation to assist their client when identifying and collecting  electronic documents responsive to discovery demands.  Indeed, it is not sufficient or defensible to have a non-IT savvy individual search electronic media for responsive materials and to do so without meaningful oversight and involvement of counsel.

The Rodman case is a certified class action for breach of contract.   Defendant, Safeway, Inc. (“Safeway”), entered with customers an online contract that determined pricing and delivery fees associated with online grocery shopping.  The essence of the allegations before the Court were that Safeway breached the contract by charging prices on Safeway.com that were materially different than those charged (for the same items) in the physical store from which the groceries were selected and delivered.

After multiple summary judgment motions, one issue remained for trial: whether class members who registered for the delivery service prior to 2006 agreed to the same contract as class members who registered after 2006?    As a result of this remaining issue, class representative Rodman requested documents showing the terms and conditions and registration process in effect from 2001 through 2005 (“Special Terms”).  On March 9, 2015, Safeway responded to this discovery demand advising that it did not have access to the Special Terms and subsequently reported (on April 7, 2015) that it could not locate any documents responsive to this request.

Seven days before trial, Safeway produced 10 highly responsive documents related to Safeway’s Special Terms.  These documents were found on a “legacy” hard drive and were found by Safeway’s Director of Marketing – Steve Guthrie – when he was prepping for the trial (more than 5 months after discovery closed).   Guthrie – who was designated to testify concerning all steps taken to locate documents and persons knowledgeable about the pre-2006 processes and Special Terms, previously testified that he had searched the legacy hard drive using “key word searches” and did not locate any responsive documents.    

Given the highly relevant nature of the documents produced, the Court continued trial for two months and permitted Plaintiff to take additional discovery.  Eventually, a judgment was entered against Safeway. That judgment is now on appeal before the Ninth Circuit.  

On April 6, 2016, however, and as is relevant to this blog, Rodman filed a motion for discovery sanctions.  Judge Tigar’s decision, granting in part and denying in part the sanction motion, entered on October 4, 2016, imposed a sanction in the amount of $516,484.00 against Safeway.

LEGAL STANDARD FOR DISCOVERY

In reaching its decision, the Court began by reciting the standard under FRCP 26(g) – that a “signing attorney [must] certify that a reasonable inquiry has been made with respect to the factual and legal basis for any discovery request or response.”  The Court further found that when an attorney makes a certification that violates this rule and does so without “substantial justification,” the Court “must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.” (Rule 26(g)(3)). (emphasis added).

Plaintiff moved for sanctions based upon Safeway’s false statement that no documents responsive to his demand for the pre ’06 Special Terms existed.  Safeway responded that sanctions were not warranted because it made a reasonable inquiry into the basis for its response, including interviewing individuals, and searching the legacy drive for documents.  Safeway argued these steps were comprehensive and thus reasonable.

The Court disagreed and concluded that Safeway’s initial search of the legacy drive was unreasonable for at least three reasons.

First, the Court found “there [was] no indication that Safeway’s counsel guided or monitored Mr. Guthrie’s search of the legacy drive in any significant way.”  Rather, counsel relied on Guthrie’s own determination and seems not to have questioned the thoroughness of Guthrie’s search.  The Court found this “lack of guidance and oversight sufficient to “support” a finding of unreasonableness.”

Second, because there is no evidence that Guthrie had any experience in conducting searches of large document repositories, such as the approximately 300 GB legacy drive, the search was unreasonable.  Indeed, the Court found that Safeway’s counsel could have, but failed to, request a member of Safeway’s IT department (or anyone else familiar with modern e-discovery) conduct the search.

Third, the evidence indicates the search was objectively unreasonable. For example, this was not the case of Safeway being asked to locate the proverbial needle in a haystack.  Rather, many of the electronic file folders (now known to contain the responsive documents) had names like, “Special Terms,”  and “OldSiteDesign” – names that should have signaled to anyone conducting an adequate search that the folder was likely target rich.  Instead, Mr. Guthrie searched for the key words only in a file’s name (rather than in the body of, or content of the file or folder).  This too, shows counsel failed to guide, monitor or inform what Guthrie did.

Clearly if we are to internalize any lesson from this decision it is the obligation of counsel to actively participate in the discovery process.  We cannot allow our client(s)/clients’ employees to collect responsive information in a vacuum.  Rather, we must actively participate in the process and we must secure the expertise of individuals steeped in modern e-discovery when we or client lacks the expertise.  In fashioning the one half-million dollar sanction, the Court found it telling that a substantial part of the legal work Plaintiff sought the cost of performing (additional discovery, unnecessary trial preparation.) would have been avoided had a reasonable search – meaningfully informed by counsel – been conducted on the legacy drive.

 

In Hyles v. New York City et. al., (Case No. 10-3119, 2016 U.S. Dist. LEXIS 100390 [S.D.N.Y. Aug. 1, 2016], the plaintiff, an African-American female employed by the City of New York, was demoted.  Specifically, she was replaced by a white male and demoted to a different position with a lesser salary.  Ultimately, plaintiff sued the City for discrimination and a hostile work environment under various federal statutes.

Discovery in the case was unnecessarily protracted for a number of reasons including a temporary stay and attendant delays due to mediation, motion practice, and what the Court called, a “lack of effort by counsel.” Eventually, a discovery conference was held before Magistrate Judge Andrew Peck after counsel for both parties jointly requested the Court resolve various discovery disputes.  As is relevant to this blog, the parties requested the Judge determine the scope of electronic discovery regarding: (a) custodians, (b) the date range to be searched, and (c) search methodology to be utilized.  Regarding the issue of search methodology, the City sought to use keyword searches designed to identify potentially responsive materials.  Plaintiff, on the other hand, requested the Court compel the City to use a form of technology assisted review (“TAR”) to perform the City’s search for potentially responsive materials.  In seeking to compel the City, plaintiff asserted that TAR is the more cost effective and efficient way to obtain discovery.   The City, in opposition, argued that the cost of TAR was too much and, because the parties failed to collaborate well in the past they “would not be able to collaborate to develop the seed set for a TAR process.”

In response to the plaintiff’s argument that the use of TAR would be the most efficient and cost effective, Judge Peck agreed stating “the Court believes that for most cases today, TAR is the best and most efficient search tool,” finding it “superior” to key word searching and noting, “[t]he Court would have liked the City to use TAR in this case”.  However, citing Sedona Conference Principle 6, Judge Peck held that “the responding party is best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own [ESI].”

Judge Peck noted that someday, the law may be at the point where “it might be unreasonable for a party to decline to use TAR… [but,] [w]e are not there yet.” Hyles, supra, 2016 U.S. Dist. LEXIS 100390 . at *9-*10.  Therefore, the Court denied plaintiff’s application to force defendant to use  predictive coding.

It is interesting to note the ever-growing trend among federal judges to embrace TAR as an effective way to contain costs and engage in an efficient discovery process.  While it is true that the state of the law currently allows the responding party to determine how best to identify potentially responsive data such that the party can comply with its discovery obligations, I predict (no pun intended) that more and more parties – when faced with the potentially tremendous financial costs attendant to e-discovery – may soon turn to various TAR methodologies if only as a means to control costs.

Novick v. AXA Network, LLC, 2014 WL 5364100 (S.D.N.Y. Oct. 22, 2014)

In this contract dispute case, the plaintiff made a motion for sanctions under Rule 37(b)(2) requesting the court strike the defendants’ answer and counterclaims, allow a negative spoliation inference against the defendants and order a monetary fine due to the plaintiff’s “repeated attempts to obtain the at-issue discovery and defendants’ failure to preserve the same.” The plaintiff alleged that the defendants had significantly delayed the discovery process by providing largely irrelevant emails, by withholding emails that were unfavorable to the defendants, by failing to preserve relevant emails and by failing to preserve 10 weeks of audio recordings that constituted “approximately one-third of the entire time period ordered.” The court found that “the defendants acted in bad faith respecting their production of e-mail messages, employed delay tactics, caused substantial costs to be incurred by the plaintiff and wasted the [c]ourt’s time.” The court also found that the defendants had acted in bad faith regarding the missing audio recordings. Thus, the court imposed an adverse inference jury instruction concerning the audio recordings, awarded the plaintiff reasonable attorney’s fees and ordered that certain depositions be retaken at the defendants’ expense.

In Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014), discovery in the breach of contract case was contentious, protracted and resulted in a multiple motions to compel, the first of which the court granted in favor of the defendant.  At that time, the court warned the plaintiff “not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests.”  Not heeding the Court’s warning, Plaintiff subsequently produced documents on nine separate occasions.  At that time, Defendant learned, for the first time, of a “five-step development process,” that it believed was highly relevant to its claims in the case, and which caused it to believe that the plaintiff was withholding relevant documents from production.  Accordingly, Defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information. 

The court granted in part Defendant’s second motion to compel and, in light of Plaintiff’s continued piecemeal production coupled with other discovery failures, fashioned a “new and simpler approach” to discovery, including the identification of 13 search terms/phrases to be utilized when searching “ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .”  The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its “good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].”

In deciding the motion, the Court expressed its frustration with “the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.”  The court also noted that despite the bickering between parties, neither had ever filed a motion for a protective order “[n]or ha[d] any party foregone passive-aggressive snarking and filed a formal motion under Rule 11 or 28 U.S.C. § 1927 to complain about material misrepresentations in motion papers.”  “Instead,” the court continued, “the parties would prefer that the Court forget what the actual claims are in this case and start obsessing over details . . .” 

Reasoning that “[a] lawsuit is supposed to be a search for the truth, and the tools employed in that search are the rules of discovery,” that “[o]ur adversary system relies in large part on the good faith and diligence of counsel and the parties in abiding by these rules and conducting themselves and their judicial business honestly” and noting that “Rule 37 helps enforce proper conduct,”  the court indicated it would “fashion a new and simpler approach to discovery that keeps the core of Optimum’s counterclaims in mind.”  The court went on to state that it had “noticed” “[i]n the various discovery documents attached to the motion papers” that “certain phrases appear that inevitably refer to or hint at [the at-issue technology]” and that the phrases “open the door to a more objective discovery process that leaves Armstrong no room for gamesmanship.”  Thus, after identifying the terms/phrases specifically, the court ordered:

For a period starting from January 1, 2004 through the present time, Armstrong must search ALL corporate documents, files, communications, and recordings for EACH of the above phrases. Armstrong will maintain a list of every server, computer, file room, or other place searched, and a list of all positive search results. For each positive result, Armstrong will procure a full copy of the document in question. Armstrong also will furnish a complete and sworn description of its document retention policies, if any, from January 1, 2004 through the present time. In the specific instance of [REDACTED] reports, if for any reason a product did not have a written report for a certain stage or did not go through all five stages then someone at Armstrong with appropriate knowledge or expertise will provide a sworn statement explaining why. When the search is complete, a representative of Armstrong and all of Armstrong’s counsel of record will file a sworn statement confirming that Armstrong made a good-faith effort to identify sources of documents; that a complete search of those sources for each of the above phrases occurred; and that the search results have been furnished to Optimum. All of this must occur on or before April 1, 2015, with absolutely no exceptions or extensions. Failure to comply will lead to sanctions under Rule 37(b)(2)(A).

The court also warned Defendant that it would not hesitate to impose the same approach on its discovery and ordered that counsel of record file, by a date certain, a sworn statement that all discovery requests had been fulfilled, or a motion for a protective order. 

In light of this judicial reminder that courts favor a collaborative and efficient resolution of matters, and that Judges can, and will impose sanctions for egregious discovery violations, counsel should take seriously their obligations to be cooperative, diligent and timely during the discovery process irrespective of the courthouse in which we practice.

 

In today’s litigious world, discovery is costly and can be perilous. Exacerbating this landscape is the fact that sanctions are imposed for discovery violations more than any other litigation error. Not surprisingly, avoidable discovery mistakes lead to client dissatisfaction.  Below are ten critical tips to avoid discovery sanctions and to remain compliant with discovery obligations.

  1. Implement Timely Litigation Holds Be sure your legal hold is implemented as soon as litigation is reasonably anticipated. Be certain that your hold notice is sufficiently broad, is sent to the right custodians, receipt is acknowledged, and it is updated as needed.
  2. Conduct Key Custodian Interviews A lawyer cannot rely only on the hold notice.  Rather, custodial interviews with key players, IT personnel and anyone else with information relevant to the dispute or the client’s network architecture should be conducted.  Minimally, these interviews will confirm the suspension of auto-delete protocols and will help identify all relevant information for preservation and collection.
  3. Be Proactive Because in today’s technology-intensive world there are substantial quantities of ESI, if you want to receive a document demand before preserving and collecting documents, you may not have time to respond to those demands.  Anticipate document demands so you can start the interview, identification and collection process.  You will have a better handle on the documents (what does and does not exist), and your client’s story such that you will be in the best position to comply with discovery and meet discovery challenges.
  4. Honesty is the Best Policy When Dealing with the Courts and Opposing Parties Never make a factual representation about the status of preservation, collection, or production efforts without confirming the underlying facts with original sources. While a client will rarely mislead their lawyer intentionally, it is common for clients to have incomplete information or operate under a misunderstanding of fact when information is communicated second- hand.   Moreover, courts and opposing parties understand that mistakes can happen at various stages of the discovery process.  Such issues must be addressed immediately and head-on.  Usually the optimal strategy is full disclosure along with remedial measures.
  5. Always Budget Obtain a realistic budget before proceeding with ESI collection processing and/or review.  This is a costly area of litigation and lawyers must manage client expectations. Update the budget as needed to accommodate changes attributable to collection volume or other factors.
  6. You Get More Bees with Honey… Seek a cooperative approach irrespective of how unpleasant or unreasonable opposing counsel may be. Indeed, a cooperative approach to discovery will invariably reduce disputes and expenses. Take the higher road and assume that every email and letter you write to opposing counsel may end up in front of the judge, so adopt a cooperative approach and reasonable tone in all communications with opposing counsel.    As one of our earlier blog posts showed (see Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014)), Judges have very little patience for uncooperative behavior during a lawsuit’s “search for the truth.”
  7. There’s No Longer Room For Boilerplate Discovery The amended FRCP 26(g)(1)(B)(iii) provides that every discovery request and response must be signed by at least one attorney of record, and by signing you certify that the discovery request or response is proportional – meaning “neither unreasonable nor unduly burdensome or expensive considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of issues at stake….”  The Rule goes on to state that “[i]f a certification violates this rule without substantial justification, the court must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.”
  8. Be Careful What You Wish For…Lest You Receive It In Return Never send a discovery request to an adversary that you or your client would be uncomfortable complying with were opposing counsel to author a reciprocal request to you.
  9. Carefully Devised Search Terms Are Critically Important The judgment of your legal team is a good starting point for crafting search terms, but is far from sufficient.  Review a preliminary “hit-by-term” report from your ESI vendor so you can appreciate which terms are too limiting or overbroad.  During custodial interviews (see supra) ask about project code names, and other unique search terms.  Then sample, sample, sample!  Sampling the documents—both the hits and the non-hits—can help refine search terms and validate the terms chosen.
  10. Wise Use of Technology Can Be a Litigator’s Best Friend ESI processing, review (even with contract attorneys) and production is among the most costly elements of any litigation.  When used efficiently and wisely, technology can significantly reduce those costs. Consider early data assessment, filtering and predictive coding technology as appropriate for each matter.