Double Secret e-Discovery Probation

The parties dedicate nearly all of their briefs discussing and alleging who is to blame for the break-down in the discovery process in this case. Noticeably absent, however, is any meaningful discussion about the specific discovery requests at issue and the sufficiency of any responses or objections provided. Intending no disrespect of counsel, the undersigned submits that the record presented here is the litigation equivalent of the cafeteria food fight scene in the infamous movie Animal House.

James P. O’Hara, United States Magistrate Judge

No attorney war room should have a partner walk in and scream “Food fight!” 

Judges loath scrubbing the figurative e-discovery mashed potatoes off the walls.  However, this case sounded more like the job entailed cleaning peanut butter out of shag carpet, with the judicial rage to match.

Accounting Principals, Inc. v. Solomon Edwards Group, LLC, is about the alleged misappropriation of supposedly proprietary business information

The heart of the discovery dispute involved a motion to compel the Defendants “to fully, completely, and without objection identify and produce all documents and things in its possession, custody, or control responsive to” four separate requests for electronically stored information.  Accounting Principals, Inc. v. Solomon Edwards Group, LLC, 2010 U.S. Dist. LEXIS 82071, at *3-4 (D. Kan. Aug. 12, 2010).

The Court noted that nearly all the briefing amounted to nothing but finger-pointing.  However, the parties did highlight several issues that needed resolution, if only they had been addressed in a specific and practical manner for the Court:

The supposedly disproportionate costs associated with retrieving ESI from defendants’ computers;

Who should bear those costs given the supposedly very limited amount in controversy; and

The potential trial-related consequences of any failure to preserve evidence as previously ordered.

Accounting Principals, Inc., at *5. 

The Court denied the motion to compel, because the Plaintiffs failed to state what was in dispute.   Accounting Principals, Inc., at *5.

However, the Court had issues to address and did not have the information to make any resolution of the issues presented.  As such, the Court ordered a Case Management Conference that would be attended by the “first chair” attorneys, their client’s chief executive officers and the persons most knowledgeable regarding their ESI.  Accounting Principals, Inc., at *5.

Bow Tie Thoughts

The quickest way to be on double secret probation is to present jumbled arguments that do not allow a court to make any resolution of a dispute.  Moreover, yelling “ramming speed” as you file finger-pointing motions is not problem solving.

e-Discovery requires attorneys to understand their client’s electronically stored information.  Since most lawyers are not computer experts, e-Discovery consultants should be retained to assist with translating IT language to English.

I also am pretty sure a Gen X judge will one day reference Old School in an opinion when this happens again.

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