Sanctions for e-Discovery Abuses – Is the Attorney to Blame?

A district court in Ohio decided that sanctions were appropriate due to plaintiff’s “persistent and egregious noncompliance with a series of discovery orders”, but could not decide whether to impose the sanctions against the plaintiff or its attorneys.  Exact Software v. Infocon, 479 F.Supp.2d 702 (N.D. Ohio, Dec. 5, 2006). gavel

In an unusual order, the plaintiff software company was granted leave to show cause why sanctions should be imposed against its attorneys, and not it.  The question of blame arose when new counsel appeared for plaintiff and filed an affidavit by plaintiff’s CEO swearing that the prior attorney failed to inform the company of the court orders and pending motion for default. Id. Fn. 25.

The Court was ready to sanction the plaintiff by dismissing its case, entering default judgment for the defendant on its counter-claims, and taxing all fees and costs.  But as the court noted, it should not sanction a party “where the fault lies with inattentive, inept, or incompetent counsel” so that the “party does not suffer for the ineptness or incompetence of its counsel.” Since the court only knew that its orders were not followed, and did not know why, it provided plaintiff with an evidentiary hearing to prove that its prior attorneys were to blame, not it. 

The opinion at Fn. 2 notes that the plaintiff has been represented in this dispute by at least four different attorneys. This is usually a red flag that it is the client who is the problem.  Still, the opinion suggests that the third attorney, whose motion to withdraw was still pending, could be partially at fault because most of the discovery failures happened on her watch.

One of the most interesting failings noted in the order had to do with the use of keyword searches of plainitff’s records.  Plaintiff blamed its failure to produce certain relevant documents upon the opposing party’s poor choice of search terms.  Plaintiff argued that the search terms defendant used did not produce a hit on these known documents, and so they did not produce them. The court soundly rejected this saying:

Their attitude and approach were not appropriate. Just as a party asking for production of a paper document does not have to specify the room, cabinet, drawer, and file in which the document is to be found, a party calling for production of electronically created and kept information is not required to plot the search with exactitude. If the party from whom discovery is sought can comprehend with reasonable certainty what is being asked for, it is up to it to access its storage system to retrieve the document. If problems are encountered due to uncertainty about what is being sought, the party conducting the search of its own system and records is to ask for further clarification.

POSTSCRIPT: This order was appealed, and then the case settled on July 31, 2007, before there were any rulings.  So we will never know for sure who is to blame, but I have my suspicions.

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