Don’t Argue “Human Error” For Not Searching ESI

It is dangerous for lawyers to argue information was not searched for years because of “human error.” That is right up there with saying, “Your Honor, we goofed. Are we cool?”

As we learned from Judge Kevin Fox, no, we are not cool.

The case involved claims for wrongful termination and fighting over audio recordings and emails for over five years. Novick v. AXA Network, LLC,2014 U.S. Dist. LEXIS 150004 (S.D.N.Y.Oct. 22, 2014).

AudioTape

After protracted discovery battles, the Defendants produced audio recordings that had an eight-week recording gap. Novick, at *16-17.

The Court found that 1) the Defendants created audio recordings in that time period; 2) those recordings were not produced because they were missing; and 3) there was no explanation on how these recordings went missing. Novick, at *17.

As such, the Court held that the Defendants spoliated relevant evidence. Id.

Judge Fox further found:

The defendants’ repeated failure to search for properly, locate and produce audio recordings to the plaintiff, as noted in the October 3, 2013 order, as well as their inability to account for the audio recordings’ disappearance, suggests nothing other than deliberate conduct and a culpable state of mind. The Court finds that the defendants acted in bad faith because, after representing to the assigned district judge, during the June 27, 2012 conference, that the audio recordings exist, but “are not searchable,” the defendants represented to the plaintiff, on November 20, 2012, that they “have investigated and have not located any audio recordings of the trading desk (where the individuals identified by plaintiff were located) from 2006.” Thereafter, it was not until after the plaintiff made a motion for sanctions that the defendants searched for and located the existing audio recordings, and, not until after the Court ordered their production on October 3, 2013, that the defendants admitted that the audio recordings, covering the period of time critical to the plaintiff’s claims, were missing. The defendants’ delay in properly searching for, locating and producing relevant audio recordings and their conflicting representations to the court and the plaintiff about the existence of audio recordings prejudiced the plaintiff by: (i) preventing him from discovering facts material to the adjudication of his claims; (ii) causing him to incur unnecessary costs making his motion for sanctions and the instant motion; and (iii) prolonging the litigation.

Novick, at *17-19, emphases added.

The Court turned the dial up to 11 finding bad faith conduct because of the misconduct regarding the audio files, the search for missing email messages, and the failure to search an archive due to “human error” without any further explanation. Novick, at *19.

The Court sanctioned the Defendant both with an adverse inference jury instruction and monetary sanctions. Novick, at *22-23. Striking the Defendant’s answer would have gone too far in the Court’s view.

Adverse inference instructions were justified because:

(1) The defendants had an obligation to preserve the audio recordings at the time they vanished;

(2) The audio recordings were spoliated with a culpable state of mind, namely in bad faith; and

(3) The audio recordings were relevant to the plaintiff’s claims such that a reasonable trier of fact could find that they would support his claims.

Novick, at *22.

The Court explained that the sanctioned would deter “spoliation, place the risk of an erroneous judgment on the defendants and restore the plaintiff to the position he would have been in absent the defendants’ wrongful spoliation of the audio recordings.” Novick, at *22-23.

Bow Tie Thoughts

The Duty to Preserve is not something to ignore. Nor is it acceptable to fail to search hard drives for responsive information. Furthermore, if there are discovery mistakes, a party must be able to explain what happened beyond “human error.”

Judges want to know specifics when there is a discovery dispute. As such, parties should document steps to preserve electronically stored information; including how ESI was searched; the technologies used for such searches; and were the collected information is stored. The failure to document with a detailed chain of custody and search report can end badly when electronically stored information goes missing.

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