How NOT To Do eDiscovery - Especially If It's On Purpose

I was frankly shocked to read the updated reports about the 2002 Pershing Park case in Washington DC. According to the plaintiffs, riot police rounded up and arrested hundreds of non-violent protestors in Pershing Park. The problem is that the round-up got everyone in the park - not just protestors, but also nurses on their way to a convention, bicyclists and local lawyers who often cut across Pershing park on their way to a nearby court house.

They were arrested, handcuffed, bussed to a processing unit, and then tied wrist-to-ankle on a gym floor for the next 12 hours. 24 hours after the arrest, all 400 had been released without charges. Among them were said nurses, attorneys, bicyclists, nonprofit officials, and a retired lieutenant colonel.

Predictably, they sued.

The response? If the city of Washington DC could do anything to foul up eDiscovery then that's what they did. No one seemed immune to misconduct: not law enforcement, not the district attorney's office, not IT. Between them all they managed to lose the dozen hard copies and all of the digital copies of the running resumes, which are the records of everything that transpired before, during and after that police action. The 400 or so field arrest forms disappeared. The tapes of the radio runs were edited from 2 hours to 1 (the city reported that the masters were destroyed). And emails that were requested in 2003 and 2004 have just been turned over to the court and plaintiff lawyers now. It's 2009, in case anyone is wondering. Oh, and did I mention that the emails are missing their attachments?

Judge Emmet G. Sullivan was shocked at the level of abuse of the eDiscovery process. So am I. Therefore, fair warning: "wars of attrition and scorched earth litigation" used to be a defensive move. Now it will end up costing you big-time.Here are some excerpts from what turned out to be a highly uncomfortable court discussion - at least from the district attorney's view.

Scolding the Absent Attorney General

JUDGE SULLIVAN: "I want Mr. Nickles [D.C.'s Attorney General] himself, penalty of perjury, to address all of those shortcomings, the reasons for those shortcomings and his plan that he's going to personally put in place for completion of all discovery in this case and for whatever his proposal is that will give not only this court but the parties and the citizens of the District of Columbia the confidence that they need to have that all discoverable material has been produced to Plaintiffs."

The judge gave the Attorney General 2 weeks.

What Were They Thinking?Judge Sullivan: ""Mr. Koger [district attorney], what about these late disclosures? How do you account for that? How does the City account for that? .... It's very troubling. It's very troubling."

MR. KOGER: "It is, Your Honor, and I don't know that I can account for it in the sense that I have a good reason."

JUDGE SULLIVAN: "So you have no reason?"

MR. KOGER: "I have no good reason, Your Honor..."

Sanctions!Judge Sullivan: "You know what, look, there are going to be sanctions in this case and there's going to be an award of attorney fees, and you know, those sanctions -- and there'll be additional sanctions, and I'll tell you right now those sanctions are going to be painful. They're going to hurt. And I think that it's really unfortunate that the citizens of the District of Columbia have to pay for these types of shenanigans, and that's putting it mildly...

"So, what do I have to do?  Appoint a special prosecutor in this case to find out what happened? Do I have to bring in someone from the outside to search the City's files to see whether or not all discoverable material has been turned over to Plaintiffs? What do I have to do? That's a question I'm going to ask Plaintiffs as well. I'm not going to tolerate this conduct, and the citizens of D.C. should not have to tolerate it. What else is there? How do we know that everything that's discoverable has been discovered and produced? What can you tell me that will suggest to me that I have confidence that all discoverable material has been produced? What can you say?...

"I'm going to give the Plaintiff discovery - the additional discovery they want and the City is going to pay every penny of what their cost will be for the additional discovery. I can tell you that's one sanction I'm going to impose today.

Capper via Defense Attorney Jonathan Turley

MR. TURLEY: "...one of the more obvious things that we are likely to suggest is that while we stated that the Court should award discovery costs from 2007, we believe the Court should consider forcing the payment of all discovery because they have made all prior discovery, which they drew out, to be virtually meaningless for us, and we believe that a sanction --"JUDGE SULLIVAN: "That may not be an unreasonable sanction at all."

My conclusion? When it comes to eDiscovery, don't mess around. Don't treat it like your own personal tactical toy. Don't be ignorant about how it works and the technologies that can help. Just - don't.