Court Orders Retention of Consultant to Repair Repeated and Continued Discovery Failures
Seven Seas Cruises S. DE R.L. v. V. Ships Leisure SAM, No. 1:09-cv-23411-UU (S.D. Fla. Feb. 19, 2011). In this breach of contract dispute, the plaintiffs requested sanctions and production, alleging the defendants intentionally and continuously failed to produce all responsive ESI. The defendants conceded not all relevant ESI was produced, noting that “in hindsight, an Ediscovery consultant/vendor should have been retained.” However, the defendants argued that they had agreed to re-run recent searches, that they would run searches on additional custodians identified by the plaintiffs and that the plaintiffs had access to much of the information via copies of correspondence between the parties. Noting that much of the dispute could have been significantly narrowed if not totally avoided through a pre-trial conference, the court agreed the defendants’ searches were wholly inadequate and found their failure inexcusable. Accordingly, due to their repeated failure to conduct full and complete ESI searches, and the failure to retain a consultant to conduct such searches, the court ordered the defendants to utilize a third party vendor and pay the associated attorney fees and costs. The court declined to recommend default judgment, finding a lack of bad faith and no non-speculative evidence of prejudice.
This case demonstrates the importance of preparedness and proper response. According to the Fourth Annual ESI Trends Report published by Kroll Ontrack, 52 percent of companies have an ESI discovery strategy in place, which is a pre-defined, systematic process for managing ESI in preparation for or in response to litigation, investigations or regulatory matters. Creating this strategy is a great first step, but certainly isn’t enough. Companies must implement, monitor, follow and test the strategy to ensure it is defensible and repeatable (interestingly, only 38 percent of companies have tested their ESI discovery strategy). After crisis strikes is the wrong time to get your house in order and proactive preparations will help immensely to control costs and ensure the adequacy of your response.
In addition, it is important to utilize technology that will help facilitate an efficient and timely review. Early data assessment provides an in-depth view of the quality of a case prior to the incurrence of massive document review costs, and can help reduce data sets for processing and review. The use of EDA technology will also strengthen search protocol defensibility – a major issue for the defendants in the above case – as parties can collaborate more intelligently on search terms early on. In addition, the use of e-mail analytics can validate that all relevant custodians have been identified, and reporting features will help document the process and validate the quality of search terms. A better understanding of searching processes and techniques, in addition to engaging in a productive meet and confer conference, can definitely help parties save costs and avoid the situation the defendants found themselves in.
Finally, it is important to vet your service provider, especially if retaining one is court-mandated based on poor ediscovery practices. Not all providers are created equal and rushing the decision or making a rash decision based solely on one factor may end up hurting you in the long run if the work is not performed properly. General considerations when choosing a service provider include reputation and experience, security, confidentiality and chain of custody protocols, flexibility and adaptability, and the technology and support available. In addition, discuss such things as processing and storage capacities. Enlisting the wrong service provider for your matter may end up costing you more when all is said and done. Choose wisely, ask tough questions and look for honest responses.