“[I]t is no longer amateur hour.”

In a February 11, 2021, post,   Court Enforces Strict Sanctions For Failing To Be Competent In ESI Obligations | Farrell Fritz, P.C. – JDSupra , the author describes the sanctions decision in In DR Distributors, LLC v. 21 Century Smoking, Inc., a trademark dispute over electronic cigarettes, stating:

As noted by Judge Johnson, “[i]t is no longer amateur hour. It is way too late in the day for lawyers to expect to catch a break on e-discovery compliance because it is technically complex and resource-demanding.”

The defendant used two email accounts for business and personal purposes.  The article reports:

Although Defendants’ attorneys purportedly advised Duke to preserve all potentially relevant emails from both of his accounts, they failed to issue a litigation hold or to instruct Duke to disable automated deletion features on the account that would auto-delete emails or chats. Further, Defendants’ attorneys were under the mistaken assumption that they could obtain all necessary emails from Defendants’ computer servers, when in reality, these “web-based emails and messages” were stored online.

Adding insult to injury, Defendants’ attorneys then allowed Duke to self-collect emails and communications relevant to the litigation. At no time did Defendants’ attorneys monitor or supervise the searches performed by Duke.

The results were predictable:

And so, three years later, after the close of fact discovery and various allegations that Defendants withheld relevant communications, Defendants’ reengaged an ESI vendor, who found over 15,000 responsive documents that were never collected or produced. And, Defendants were unable to recover additionally potentially relevant emails because many had been deleted by the automated deletion feature that was never disabled.

Equally predictable was the judicial determination, as reported in the article:

The Court was deeply troubled that Defendants’ former counsel lacked the basic knowledge, training, and skills to handle properly ESI. Specifically, Judge Johnston detailed the myriad mistakes made by defense counsel including counsel’s: (1) argument that “because this is a trademark case, ESI was unimportant;” (2) failure to provide a litigation hold; and (3) allowing unsupervised self-collection of relevant documents by Duke. Notably, the Court was particularly annoyed with counsel’s attempt to shift blame to the ESI vendor for failing to properly identify and produce relevant emails and communications. According to the Court, it is a lawyer’s responsibility to have “a reasonable understanding of the[ir] client’s information systems” and that such “ understanding of the client’s information systems allows counsel to create a systematic process and plan for responding to discovery requests.”

Sanctions were imposed under Fed.R.Civ.P. 37 and Rule 26(g).

Self-collection unsupervised by counsel has long been seen as imprudent.  See “Unsupervised Self-Collection Predictably Led to Problems” and “Self-Identification and Self-Preservation: A Fool for a Client?”

For a comprehensive discussion of how to impose and implement a litigation hold, see M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), and M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011).  For example, the 2011 book suggests, among other things, issuing a litigation hold notice to all who have possession, custody, or control over information that may be significant, following up with each custodian, “suspending automatic deletion programs,” issuing periodic reminders, and, where necessary, undertaking collection.  Id. at 233-34.

The takeaway is clear.  In a similar context:

At the hearing, Sklar’s counsel stated, “I don’t even know what ‘native format’ means.” The court responded: “You’ll have to find out. I know. Apparently [Toshiba’s counsel] knows. You’re going to have to get educated in the world of electronic discovery. E.S.I. (electronically stored information) is here to stay, and these are terms you’re just going to have to learn.”