E-Discovery Firm Scolded Over E-Discovery

11:50 AM -- It should be no surprise to any reader of Byte and Switch that any litigation today will require the various parties to produce email messages as part of the discovery process. In fact, E-discovery itself is a multibillion-dollar market, and it seemed to me that at least one third of the booths at LegalTech were touting some sort of E-discovery product or service.

It's therefore somewhat ironic that E-discovery firm Guidance Software is in the news for annoying an arbitrator in a wrongful termination case by not producing email messages. After marketing director Cassondra Todd got a negative performance review and hired an attorney to challenge it, she was laid off and brought suit for wrongful termination.

Guidance's initial response to discovery requests revealed little. But Todd's former manager -- and gee, a competitor now -- had printed relevant email messages that Guidance hadn't produced. After Guidance asserted that searching backup tapes and deleted files would have been too much work, work in fact they would have charged a client $100,000 for, the arbitrator in the case ordered the search anyway and Todd was awarded $300,000.

The full AP story is available here.

This isn't the first time Guidance has been in the news: A 2005 hacking incident exposed 3,000 or more customer credit card numbers.So what can we learn from Guidances experience:

Guidance's response to the AP article, in addition to the usual legal mumbo jumbo about how they ultimately produced everything and searching backup tapes wasn't required at first under the federal rules, says:

I wonder how you can perform efficient discovery without searching backup tapes, and suggest Guidance make a deal with Index Engines.

— Howard Marks is chief scientist at Networks Are Our Lives Inc., a Hoboken, N.J.-based consultancy where he's been beating storage network systems into submission and writing about it in computer magazines since 1987. He currently writes for InformationWeek, which is published by the same company as Byte and Switch.