Cost-Shifting Denied Despite Discovery Errors

    Jul 22, 2015

    In a long-running battle over the production of electronically stored information (ESI) in Malone v. Kantner Ingredients Inc., the U.S. District Court for the District of Nebraska issued a memorandum and order saying that although the defendants may have made mistakes in their 2012 manual review of their ESI, they did not have to pay for the forensic review of their servers and external hard drive the plaintiffs conducted in an attempt to prove information had been withheld.

    This ruling came in response to the plaintiffs’ motion to show cause alleging that the defendants had destroyed or tampered with evidence, lied to the court regarding its existence, and failed to comply with an earlier court order that they were to locate and determine if the server imaging they had performed at the outset of the case was full and complete; produce invoices located on the server, the names of those who had access to the server, and all metadata related to the server; and produce sent e-mail recovered from their servers that was responsive. The plaintiffs also requested an order requiring the defendants to reimburse them for the forensic analysis.

    The court’s analysis said the defendants’ legal counsel had confirmed that the data image from the shared server was full and complete. But, the legal counsel could not access the exchange server data because even though it was operational, he did not have the needed connector. So, the defendants sent the servers to their forensic expert, who fully imaged the servers and provided a full copy of it to the plaintiffs.

    The order said that by providing this image, the defendants complied with the court’s order to produce e-mails, invoices, and metadata – and allowed the plaintiffs to “see for themselves” whether anything was missing.

    The court said that, at most, the plaintiffs had provided evidence of defendants’ mistakes during their 2012 manual review, but this did not warrant imposing sanctions – “particularly where the plaintiffs now have full access to the server imaging.” The court cited The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (Public Comment Version, 8 August 2007) in saying, “The discovery standard is, after all, reasonableness, not perfection.”

    In denying the plaintiffs’ motion, the court allowed a little e-discovery wiggle room, stating that “human error is common when attorneys are tasked with personally reviewing voluminous electronically stored information.”

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