W hile they may have expressed it a little differently, Albert and - - PDF document

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T3 4 e-discovery

The saga of e-discovery non-cooperation that occurred in the Seroquel multidistrict litigation is instructive. In re Seroquel

• Prods. Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007). In

Seroquel, plaintiffs successfully moved for sanctions based on defendant AstraZeneca’s (“AZ”) failure to comply with certain discovery obligations set forth in a Case Management Order (“CMO”). Magistrate Judge David A. Baker’s decision to grant the motion was influenced by the protracted failure of the parties to cooperate from the earliest stages of the case. After an initial discovery conference, which included “sub- stantial discussion” of the Court’s expectations for the progress

• f discovery, the parties were directed to arrive at a mutually

acceptable plan for preservation and production of electroni- cally stored information (“ESI”). However, as deadlines and court dates quickly approached, the parties failed to even dis- cuss some of the key elements of the discovery plan, including ESI format and metadata production. The parties eventually prevailed on the Court to enter a CMO detailing the parties’ e- discovery obligations which the Court regarded as “unduly cumbersome.” The Court’s concerns proved prophetic; scarce- ly three months later, plaintiffs moved to compel compliance with the order. The Court denied the motion, ordered the par- ties to again confer extensively, and set a date for an eviden- tiary hearing and issued this ominous warning:

How Important Is It To Cooperate With Opposing Counsel After In Re Seroquel?

Mark S. Sidoti and Phillip J. Duffy*

Gibbons P .C.

“Every kind of peaceful cooperation among men is primarily based on mutual trust and only secondarily on institutions such as courts of justice and police.”

~Albert Einstein (1879 - 1955)

“Can’t we all just get along?”

~Rodney King, (1965 - ____)

W

hile they may have expressed it a little differently, Albert and Rodney both had the concept down. Unfortunately “getting along,” while among our most noble ideals, is the epitome of something far easier said than done. This is especially true for litigants. The problem with this — now well into the era of electronic discovery, new rules and new judicial expectations — is that litigants and their counsel now face increasingly more painful consequences for failing to sit down with their adversaries, exchange information, and carefully plan for the stark realities of conducting complex discovery. If the published decisions over the past two years are any indication, the amendments to the federal rules that address e-discovery obligations, and their state counterparts have clearly provided courts with newly sharpened teeth that Judges have not been reluctant to sink into those who remain set in the old way of doing things.

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T3 6 e-discovery ANY PARTY WHOSE CONDUCT NECESSITATES THE EVIDENTIARY HEARING SHOULD EXPECT THE IMPOSITION OF SANCTIONS FOR ANY UNREASONABLE OR INAPPROPRIATE CON- DUCT OR POSITION TAKEN WITH RESPECT TO THESE MATTERS.

This dire warning prompted AZ to make further promises to comply with the CMO, but these went unfulfilled and plaintiffs eventually successfully moved for sanctions. In his decision, Judge Baker indicated his prior warning provided AZ with more than sufficient notice that failure to resolve its non-compliance with the CMO could result in sanctions. Accordingly, he refused to allow AZ to “gain an advantage by agreeing to cure the discovery violation, then fail to implement the cure, and hope to avoid a sanction by forestalling the sanctions ruling.” Chastising both parties for “posturing and petulance,” the Court affirmed the need for cooperation in unequivocal terms: Identifying relevant records and working out technical methods for their production is a coopera- tive undertaking, not part of the adversarial give and take. … It is not appropriate to see an advan- tage in the litigation by failing to cooperate in the identification of basic evidence. Grounding its decision upon authorities that have guided courts on e-discovery issues for the past several years, includ- ing the Manual for Complex Litigation and The Sedona Principles, the Court held that AZ was “purposely sluggish” in its production to plaintiffs. It further found that prejudice was to be presumed based upon the delay and resulting limi- tation of plaintiffs’ opportunity to examine the information and follow-up as necessary. The Court emphasized AZ’s “tardy” and other inappropriate conduct, including its failure to use proper key word searches or confer with plaintiffs on search terms, “mysterious” de-duplication efforts, non-pro- duction of attachments, omission of relevant emails and pro- duction of 10 million pages of “unaccessible, unsearchable and unusable” electronic documents. Moreover, it found AZ’s efforts to prevent and solve technical problems were “woefully deficient” and rejected AZ’s efforts to blame its e- discovery vendor based on the Sedona Principle providing that par- ties are responsible for the errors of their vendors. Seroquel and other decisions like it have ushered in a brave new world of discovery ground rules in litigation. While litigants and their counsel con- tinue to find their way through the minefield, some valuable lessons regarding the need to cooperate, and how to deal with adversaries who do not, are beginning to emerge from these decisions. Do your homework. It is no longer an option to go into a Rule 26(f) meet and confer without first fully understanding your client’s IT infrastructure and ESI practices. The rules and the courts demand that you have a working understanding of these mat-

• ters. Without it you cannot begin to effectively advocate for

ESI preservation and production protocols (in either direc- tion) that serve your clients interests. Be prepared to meet your obligations, even if your adversary is not. In many situations, your adversary will not be as well prepared as you to deal with ESI issues. Make

The problem

with this . . . is that litigants and their counsel now face increasingly more painful consequences for failing to sit down with their adversaries, exchange information, and carefully plan for the stark realities

• f conducting

complex discovery.

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T3 8 e-discovery

lemonade from lemons in these circumstances. Your pre- paredness gives you a significant advantage beyond simply being able to represent to the court that you are playing by the

• rules. At very least, you will be far better positioned to dic-

tate the terms of e-discovery consistent with your client’s interests, more in control of the preliminary discussions and more effective at the Rule 16 conference. And yes, Judges still need help sorting these issues out; you want to be the party regarded as part of the solution, not the problem. Document lack of cooperation in the Rule 26 process. Litigants — typically those with the most data and, thus, the heavier burden,

• r those less prepared to deal with ESI

issues - often resist efforts to cooperate, be transparent in the exchange of infor- mation and agree to entry of ESI consent

• rders. Their most common refrains

include “we understand our obligations” and “the rules don’t require entry of a consent order on these issues.” While the latter may be technically correct, it does not reflect the attitude of coopera- tion that courts are now looking for and is inconsistent with the spirit of the

• rules. When these roadblocks arise, doc-

ument your client’s position early and

• ften and look to propose creative, even novel solutions. This

paper trail will help greatly when the Court eventually needs to understand the parties’ historical posture, including who was trying to protect the evidence and abide by the rules. In fact, more than ever, courts are using novel methods to encourage parties to get beyond typical posturing and mean- ingfully address these issues. One example that the authors have personally experienced is Judge David Waxse’s video- taped Rule 26 conferences. Talk about an effective way to compel the parties to prepare, focus and cooperate! Look to the Courts early for resolution of problems. Early judicial intervention - even where certain issues are not ripe for a formal ruling - allows the Court to become familiar with the behavior of the parties, and helps you create a record upon which you may build future challenges. If your adver- sary is uncooperative at the Rule 26(f) stage, you can bet this behavior will continue throughout the discovery process. In fact, many of the most influential e-discovery cases — like those in the Zubulake, Treppel and Seroquel — involve a series of pub- lished opinions, each building on the

• ne before it and typically culminating

in a decision addressing the court’s final solution (often some form of sanc- tion). If you need more convincing, one court recently held that a delay in enforc- ing your rules-based e-discovery rights (even by responding “over objection”) may signal your lack of concern, an implicit waiver of your rights, or that the demands were not as “unreasonable” as you may later claim. See Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008). Litigators are steeped in a tradition that encourages conflict and strategic non-cooperation. But if Seroquel and similar cases teach us nothing else, it is that litigators in the age of e-discov- ery must learn a new set of skills, and learn them quickly.

Do your

homework. It is no longer an

• ption to go into

a Rule 26(f) meet and confer without first fully understanding your client’s IT infrastructure and ESI practices.

* Mark S. Sidoti is a Director at Gibbons P .C. where he chairs the firm’s E-Discovery Task Force, an interdisciplinary group which provides counseling, training and litiga- tion-related assistance to companies on the full range of information management and e-discovery matters. Mark frequently publishes and lectures on e-discovery and information management best practices. He is counsel for the plaintiff in the well- known Treppel v. Biovail case, which has given rise to several reported decisions that have been recognized as among the most influential e-discovery opinions to

• date. Phillip J. Duffy is Counsel at Gibbons P

.C. and a senior member of the E- Discovery Task Force. He also frequently publishes and lectures on these issues.