The selection of experienced and competent counsel specializing in e-discovery is imperative in order to minimize exposure sanctions and prevent the disclosure of privileged information, as illustrated by Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006) and Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D.Md.2008).
In Phoenix Four, the Court awarded monetary sanctions to the Plaintiff for the Defendant’s failure to preserve electronically stored information. Counsel for the Defendant spoke with the client regarding the need to locate and gather paper and electronic documents. However, counsel did not meet its obligation to locate and produce in a timely fashion relevant information contained on a server.
A counsel’s obligation is not confined to a request for documents but includes a duty to search for sources of relevant electronic information. In order to discover all such sources, counsel must follow best practices for e-discovery, including actively investigating and assessing its client’s data repositories and becoming familiar with all document retention policies and data retention architecture. Counsel must be able to ask the right questions of information technology officers and other key personnel involved in the litigation to competently identify the sources of information.
In Phoenix Four, counsel never undertook a methodological survey of its client to determine the sources of the information. It appears that this failure was not due to simple negligence but lack of experience with the process. Experienced and competent counsel would have conducted a reasonable and legally defensible protocol for the identification of all sources of potentially responsive documents, including documents that were not reasonably accessible for discovery.
In Victor Stanley, the Court found Defendant Corporation to have waived attorney-client and work product privilege asserted for 165 electronic documents. The Defendant sought the privilege after an inadvertent production of the documents was made. The Court found that the counsel failed to demonstrate the reasonableness of its keyword search utilized for identifying privileged documents. Counsel did not identify the keywords selected nor the qualifications of individuals who selected the keywords to establish that it was a proper search. Counsel did not sample the documents or perform any quality assurance measures. Counsel attempted to justify the failure to identify privileged documents by complaining that the volume of e-discovery resulted in time constraints that could not be met.
The failure of counsel in Victor Stanley is inexcusable. The volume of e-discovery is rapidly increasing in litigation and requires experienced e-discovery counsel, with tried and true review protocols and project management experience to ensure that privileged and other confidential documents are not produced and that document production is timely. The Victor Stanley court recognized the need for experienced counsel by stating, “Determining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) . . . “ At the very least, counsel needs to be aware of literature describing the strengths and weaknesses of various e-discovery search and retrieval methodology.