THE INCREASING RISK OF SANCTIONS FOR ORDINARY NEGLIGENCE IN E-DISCOVERY COMPLIANCE

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1 White Paper Series February 2006 THE INCREASING RISK OF SANCTIONS FOR ORDINARY NEGLIGENCE IN E-DISCOVERY COMPLIANCE The law is continuously carving out and redefining the boundaries of electronic document preservation and production requirements. Because of the drastic consequences now being sought from and often granted by courts in electronic discovery, businesses and lawyers need to keep a watchful eye on this evolving landscape. Lately, the spotlight has been on a number of recent high profile decisions severely sanctioning litigants who were guilty of willful or grossly negligent e-discovery conduct. However, the law also has a trap for the unwary severe sanctions can also be assessed for mere ordinary negligence in complying with e-discovery obligations. In this environment, which looming e-discovery changes to the Federal Rules of Civil Procedure will make even more hostile, pre-litigation document retention planning and compliance with e-discovery obligations have never been more important. The Willfulness/Gross Negligence Standard In perhaps the most infamous e-discovery sanctions case to date, Coleman (Parent)Holdings, Inc. v. Morgan Stanley & Co., Inc.,1 CPH sued financial giant Morgan Stanley for fraud in connection with CPH's sale of stock, and sought access to Morgan Stanley's internal s. After learning that many relevant s were lost because Morgan Stanley had continued its policy of overwriting s (despite an SEC regulation requiring their retention), the court ordered Morgan Stanley to go to its backup tapes for relevant s. Morgan Stanley partially complied, but its internal team in charge of the project knowingly failed to search many hundreds of backup tapes and falsely certified the production as complete. Morgan Stanley then notified CPH and the court that there were thousands of additional responsive s and that the team was continuing to find additional 1 CPH (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL (Fla. Cir. Ct., Mar. 1, 2005).

2 The Increasing Risk Of Sanctions Page 2 of 5 additional backup tapes and was still searching backup tapes for even more s just a month before trial. To make matters worse, Morgan Stanley's counsel misrepresented facts relating to when the team had found the backup tapes, and equivocated about the timeframe for completion of the searches. The court noted that there was no way to know if all potentially responsive backup tapes had been located, and that responsive s existed that were not produced. It therefore found that relevant evidence had been spoiled and sanctioned Morgan Stanley by providing a detailed factual account of its discovery failings to the jury an adverse inference instruction for spoliation of evidence. Such an adverse inference instruction requires that (1) the spoliator had a duty to preserve the evidence, (2) the spoliator had a "culpable state of mind," and (3) the destroyed evidence was relevant to the opponent's claims or defenses. Importantly, willful misconduct alone will be deemed sufficient to demonstrate the element of relevance. An adverse inference order, which allows the jury to infer that the spoliator destroyed evidence because it knew it was unfavorable, often cannot be overcome and forces an end to litigation. But things got even worse for Morgan Stanley. After the adverse inference order, the court learned that the company had intentionally hidden information about its discovery violations and had coached witnesses not to mention additional problems with the backup tapes. Further, the searches of backup tapes that had been found could not be performed in time for trial. The court catalogued the ample evidence of willful and grossly negligent misconduct, entered a default judgment against Morgan Stanley and deemed the majority of CPH's complaint established. The jury went on to award CPH over $604 million in compensatory damages and $850 million in punitive damages. Morgan Stanley provides an iconic example of the level of willful or grossly negligent conduct that will support a drastic sanctions award. On the other end of the scale, for courts utilizing the same willfulness/gross negligence standard, are decisions refusing to grant drastic sanctions in the absence of clearly intentional or grossly negligent misconduct. For example, Getty Properties Corp. v. Raceway Petroleum, Inc.2 involved responsibility over a gasoline spill which occurred on property owned by Getty and leased by Raceway. Getty sought access to alarm history reports which could show when gasoline tanks were overfilled, but Raceway did not begin creating such reports until three years after the spill occurred. Getty sought sanctions against Raceway, but the Getty court declined to sanction the mere failure to create data. The court denied sanctions, noting that the alarm reports had never been kept in the regular course of business 2 Getty Properties Corp. v. Raceway Petroleum, Inc., 2005 WL (D.N.J. Jun. 14, 2005).

3 The Increasing Risk Of Sanctions Page 3 of 5 business and there was no intentional deletion of documents sufficient to warrant sanctions. Another example of a refusal to grant severe sanctions absent a high level of misconduct is Advantacare Health Partners, LP v. Access IV,3 a case involving use of the plaintiff's trade secrets by former employees. After the plaintiff moved for a TRO against use of the trade secrets and requiring production of the defendant's computer records, the defendant used file deletion software to attempt to delete thousands of the plaintiff's files from his computer. However, subsequent examination revealed that the plaintiff's files remained on the computer's hard drive. The court refused to grant a default judgment as a sanction, on the grounds that such a draconian punishment was not warranted by the defendant's conduct. However, the court granted a lesser sanction, in the form of an evidentiary presumption that the defendant had copied all of the plaintiff's files. The Ordinary Negligence Standard It would be a mistake, however to focus too much attention on sanctions awards arising from willful or grossly negligent e-discovery misconduct. Many courts, including the United States Court of Appeals for the Second Circuit, do not set the bar of e- discovery misconduct as high and will award sanctions of comparable severity for merely negligent e-discovery noncompliance. The standard for the award of such sanctions was most prominently articulated in Zubulake v. UBS Warburg LLC.4 In that case, the defendant had taken steps to impose a "litigation hold" to ensure the retention of s and other documents relevant to the litigation. Despite these steps, its employees deleted potentially relevant s from their computers. In addition, the defendant failed to produce many potentially relevant s that had been retained, and delayed the production of the s that it did produce. The court held that the defendant had willfully destroyed potentially relevant s and deserved the sanction of an adverse spoliation inference an instruction to the jury that the lost s were presumably relevant and damaging to defendant's case which ultimately led to a $ 29.3 million jury verdict against the defendant. However, the Zubulake court also confirmed the rule, set forth in Residential Funding Corp. v. DeGeorge Financial Corp.,5 that ordinary negligence is a sufficiently "culpable state of mind" to support an adverse inference. When destruction of evidence is merely negligent as opposed to willful, the relevance of the destroyed evidence is not presumed. Instead, its relevance must be proven by the party seeking sanctions. 3 Advantacare Health Partners, LP v. Access IV, 2004 WL (N.D. Cal. Aug. 17, 2004). 4 Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). 5 Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002).

4 The Increasing Risk Of Sanctions Page 4 of 5 The Zubulake ruling is consistent with other decisions from the Second Circuit. For instance, the court in Metropolitan Opera Ass'n v. Local 100, Hotel Employees and Restaurant Employees Int'l Union,6 sanctioned the defendants by, among other things, entering judgment in favor of the plaintiff. Although the court found that the defendants had willfully failed to search for, preserve or produce electronic documents, it noted the Residential Funding rule that ordinary negligence in complying with e-discovery establishes the level of culpability needed to support an adverse inference sanction. The ordinary negligence standard has also been applied outside the Second Circuit to support the imposition of adverse inference instructions and other drastic sanctions. For example, in DaimlerChrysler Motors v. Bill Davis Racing, Inc.,7 the defendant's failure to preserve s stemmed from the fact that its computer system automatically deleted s unless steps were taken to retain them, and deleted s could not be recovered. The court observed that while the destruction of the s was not in bad faith, i.e., not willful, a sanction was still proper for what under the circumstances amounted to negligent failure to preserve the s. In this case, that negligence was comprised of the defendant's failure to suspend normal destruction policies in the face of litigation and the failure to make an adequate search of potentially relevant s prior to their deletion. In particular, the defendant failed to ask one of the central witnesses about relevant documents and failed to preserve internal s relating to the parties' disputed agreement. Although there was no deliberate deletion of s and no attempt to cover up failures to preserve evidence or comply with e-discovery obligations as in the Morgan Stanley case, it was clear that the defendant had made no effort to retain potentially relevant s. The court granted an adverse spoliation inference instruction that it could presume that the evidence that was destroyed would have been favorable to the plaintiff. Another application of the ordinary negligence standard came in Thompson v. U.S. Dep't of Housing & Urban Dev.,8 where the defendants failed to produce employee s despite specific requests for their production and a court ruling that they were discoverable. After a sanction in the form of an order barring any defense witness who had generated or received any responsive s, and well after the discovery cutoff, the defendants produced tens of thousands of s. This led to another round of sanctions, including an order barring the defendants from using any of the s at trial or to prepare witnesses. In this context, the court reiterated the rule of Residential Funding that 6 Metropolitan Opera Ass'n v. Local 100, Hotel Employees and Restaurant Employees Int'l Union, 212 F.R.D. 178 (S.D.N.Y. 2003). 7 DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL (E.D. Mich. Dec. 22, 2005). 8 Thompson v. U.S. Dep't of Housing & Urban Dev., 219 F.R.D. 93 (D. Md. 2003).

5 The Increasing Risk Of Sanctions Page 5 of 5 ordinary negligence, bad faith and gross negligence are each sufficient to justify sanctions. The lurking menace of crippling sanctions for the merely negligent failure to comply with e-discovery obligations will soon carry an even greater peril, because e- discovery obligations are about to get significantly more substantial and complex. Pending amendments to the Federal Rules of Civil Procedure that are expected to be approved and go into effect on December 1, 2006 will require, among other things, the production of electronically stored information directly from electronic information and storage systems in response to an ordinary request for documents. Critically, parties and their counsel will also be required to engage in pre-discovery discussion of the parties' respective information and storage systems, the preservation of discoverable information and the form of production of that information. As these evolving standards show, the law will eventually catch up with advancements in technology. Businesses and their counsel should not be caught unprepared. Contacts: Dan P. Sedor Dan P. Sedor is a partner at Jeffer, Mangels, Butler & Marmaro LLP in Los Angles and a founding member of its Discovery Technology Group. His practice focuses on litigation involving electronic discovery and data management across a broad spectrum of business disputes, including the prosecution and defense of complex contractual disputes, business torts, fraud claims, trade secret and unfair competition claims, and partnership and corporate disagreements and dissolutions. 2006, Jeffer, Mangels, Butler & Marmaro LLP

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