It's Your Fault! No It's Your Fault!

I decided I would begin my Lawdable blogging career with a look at a somewhat light piece of e-discovery case law … if there is such a thing. I do follow case law and I hope that my future posts on the subject will offer more of a “this is the potential bottom-line effect” versus a strictly academic viewpoint – I find that to be much more practical (and interesting). In the meantime, I look forward to your suggestions or thoughts. Here we go:

Lawsuits are about conflict and not always just between the parties. Is there a client that hasn’t complained about its attorney, or a lawyer who hasn’t bemoaned the actions of his/her client? It’s just part of human nature. But what happens when one or both of you fail to fulfill your preservation obligations, and this leads to sanctions? Who pays the piper?

The obligations of the client and the lawyer are clear: you must preserve Electronically Stored Information (ESI) that is relevant to the case at hand. The lawyer must provide the legal advice on what is potentially relevant and the practical advice on how to preserve it – and then monitor the client’s implementation of that advice. Having and implementing consistent best practices will be your best shot at fulfilling this obligation.

In Green v. McClendon 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009), ESI was lost when the client had “the son of a friend” re-install the operating system on her computer. The lawyer apparently did not properly implement a litigation hold and did not properly inspect and search for relevant ESI on that computer before the son of a friend “helped out.”

The court sanctioned both the client and the lawyer for the costs of the motion to compel and noted that if the court found out later that bad faith was involved in the loss of the ESI, the court would impose an adverse inference.

The final issue for the court was this: how to allocate blame between the client and the lawyer? The court concluded that they should work it out amongst themselves and present the court with a plan. (Really, how do you think that conversation went?) If, however, they are unable to agree on cost allocation then they could present the issue to the court “for determination.” (If that were to happen, does anyone else see any potential conflict there?)

The bottom line is this: the lawyer and the client must understand their obligations to preserve ESI. The lawyer and the client must work together to implement the plan. Working together and following best practices to fulfill the preservation obligation will keep your side moving in the right direction and prevent sanctions – instead of battling each other when sanctions are imposed.