The importance of flagging e-discovery issues before and at the outset of litigation has been the subject of much commentary. However, even for the lawyer and client who properly issue a litigation hold or make an e-discovery plan early on, following through on that plan and ensuring the plan complies with the federal rules are just as important. The motto, "set it and forget it," may sell on Saturday morning infomercials, but it will not satisfy every federal court.
In Bruner v. American Honda Motor Co., No. 1:15-00499-N, 2016 WL 2757401 (S.D. Ala., May 12, 2016), a Magistrate Judge granted plaintiffs' motion to compel the defendant to conduct additional searches for responsive ESI and to issue a litigation hold on the email accounts of certain employees.
In response to the motion to compel, the defendant argued that no relevant e-mails existed due to the operation of its 30-day retention policy for email. The court pushed back, however, stating that despite the loss of pre-litigation emails pursuant to the retention policy, the defendant should have nevertheless implemented a litigation hold to prevent the destruction of any additional emails created after the defendant "reasonably anticipated litigation", citing the well-known language from Zubulake. Further, the court rejected the defendant's arguments against implementing a litigation hold or conducting further ESI searches, since the defendant failed to present any specific evidence as to why either of these activities would be overly burdensome or expensive.
While this decision highlights the importance of properly issuing a litigation hold, there is also an important takeaway for lawyers — the need to gain a detailed understanding of their client's document retention and production procedures, and to utilize that knowledge throughout the litigation. This will help the attorney to pare down discovery requests sent by the opposing party and make specific, fact-based arguments as to why those requests are overly broad or burdensome.
If the attorney has discussed an e-discovery plan with the proper client representatives and/or an e-discovery vendor, he or she will be able to estimate the time and costs associated with: (1) searching for relevant ESI; (2) reviewing the ESI to determine what is responsive; and (3) producing the ESI. Armed with that information, the attorney is in a better position to raise specific objections to discovery requests, and if necessary, describe to a judge in response to a discovery motion why the information sought by the opposing party is not, "proportional to the needs of the case" under Rule 26(b)(1) or concerns ESI that is, "not reasonably accessible because of undue burden or cost" under Rule 26(b)(2)(b).
Issuing a litigation hold and making an e-discovery plan is only half the battle, and the "set it and forget it" model will not suffice. Instead, attorneys must devise a plan with their client, retain and refine the details as discovery progresses, and use their knowledge of the e-discovery plan to the client's advantage at all stages of the litigation.
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