Discovery Resources

by Aaron Cronan, Esq.,
Fios, Inc.

If you haven’t read the Bray & Gillespie v. Lexington case yet, you’re missing out on another example of the minefield e-discovery has created for litigators. In short, when a party asks for native files with intact metadata, stripped TIFFs are not an acceptable format. More important is the lesson not to make assumptions about how the data was collected and processed. Don’t tell the court or your opponent documents were printed and scanned unless you are certain that is the case. In the words of Judge Spaulding:

Berringer falsely told opposing counsel that B & G had caused all of its ESI to be printed and scanned to support the position that B & G could not produce metadata or text searchable documents. He made no reasonable effort to determine whether the story he told was true-such as looking at the information in the Introspect database or asking AKO. Counsel for Lexington and the Court were deceived by Berringer’s deliberate fabrication, and it resulted in a significant waste of resources for Lexington and the Court.

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429, at *23 (M.D. Fla. Mar. 4, 2009)

At the risk of sounding like an apologist for discovery mistakes, I’d wager Mr. Berringer assumed the documents were printed and scanned because that is the only method he has observed. For every attorney developing the technical skills required to navigate complex e-discovery, there are likely a handful that do not even realize they are walking in a minefield.

As evidenced by the Sedona Conference Cooperation Proclamation and the increase in e-discovery-related sanctions, judges are becoming more frustrated with e-discovery errors. But exemplary sanctions will only deter the conscious actions of the discovery abuser. The attorney who is unaware he/she is missing critical information about how data was collected, processed and searched will make mistakes no matter how large sanctions become.

The phrase — you don’t know what you don’t know — is criticized as tautology, but it has never been more applicable. There are large holes in many attorneys’ understanding of e-discovery that they are not even aware of. If Mr. Berringer was aware that a much more efficient method of email production was available and likely employed, would he have made such representations to the court and opposing counsel? It wasn’t the lack of knowledge that injured Mr. Berringer; it was his lack of awareness about his lack of knowledge. He very likely did not know what he did not know.

Much in the same way people think they are better drivers than really are, many attorneys believe acquiring a few CLE credits and learning the word “metadata” has prepared them for e-discovery. Do not get complacent. e-Discovery is not rocket science, but it is computer science, information management, database architecture, records retention . . . . To truly master the expanding science of e-discovery, an attorney must focus on e-discovery. There is a reason many of Fios’ e-discovery experts are former litigators. The skills required to stay abreast of discovery developments leave little room for honing litigation skills, and vice versa.

To paraphrase Judge Facciola’s keynote speech at the 2009 Legal Tech, you must become an expert in the technology of e-discovery or hire someone who is. Honest ignorance is being sanctioned with the same ferocity as intentional abuse. Who is next?

Filed under Case Law, Case Law & Rules, Discerning e-Discovery, Federal Rules, Governance, Risk & Compliance, Home Page Featured, Technology Counsel.

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