The Modern Archivist

Listen to the Court!

                Ok, I admit, I want to blog about Chief Judge Lamberth’s Memorandum Opinion in DL v. District of Columbia because I really want to quote the judge:  “Imagine a standup comic who delivers the punch-lines of his jokes first, a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes.  That’s what document production after trial is like – it defeats the purpose.”  See page 1.  And that’s only one of many memorable quotes in the Chief Judge’s decision to deny the District of Columbia’s Motion for Reconsideration of the sanctions it received for its e-discovery violations.

                The lesson to be learned here is that when a court renders an order, it’s not because it enjoys applying ink to paper.  They mean business.  And, as the Court noted, orders can also be rendered to provide guidance to those who may need some hand holding because the federal rules have failed to provide that party the clarity needed to be compliant with them.  See page 11-12.  In DL, the District failed – on numerous occasions – to adhere to the Court’s order.  According to the court, the District had “its head apparently buried in the sand….”  See page 5.  My take from this:  practicing law while acting like an Ostrich is not a good way to practice.  Sure.  It’s a bit of an understatement.  But you get the point.

                The seriousness of court orders, not just the order in DL v. the District of Columbia, seems to be missed by many litigants who are dealing with e-discovery issues.  It isn’t always clear how many of the failures are due to a flat out disregard of the orders.  I imagine that most litigants don’t set out with the mindset that they are going to willingly disregard orders given to them by a higher authority.  Rather, blatant disregard or egregious failures to comply with discovery rules and court orders appears more likely to be related to companies and attorneys who still don’t quite get the complexity and costs of e-discovery. 

                Another point I gleaned from the Chief Judge’s decision:  be transparent.  Most of us involved with electronic discovery know how complex it can be and how voluminous the data is.  When faced with trouble, ask for help.  Don’t walk blindly through the sandbox.  Transparency in e-discovery appears to be rewarded more frequently these days.  To quote the Chief Judge one more time:  “The District’s complaints of lack of resources and time pressure fall on deaf ears because it failed to seek relief through [discussions at status conferences, motions for extension of time or status updates to alert the Court].”  See page 14.  If you wait until trial to express your concerns and problems, your chances of failure are extremely high.

                Ultimately, the District was ordered to turn over all the emails within a week of trial and waived any claims of privilege.  The plaintiffs will have an opportunity post-trial to introduce new evidence found amongst the District’s most recent product, which, of course, could include privileged materials.  Not a position I would want to be in.