Airlines don’t just lose luggage.

In antitrust litigation over airline baggage fees, a Court sanctioned Delta for not conducting a reasonable inquiry and a “huge hole” in their eDiscovery process. In re Delta/AirTran Baggage Fee Antitrust Litig., 2012 U.S. Dist. LEXIS 13462, 41-43 (N.D. Ga. Feb. 3, 2012).

Flight Plan to Missing ESI

Delta had implicitly represented that all of the hard drives had been searched and there were no missing back-up tapes. This was not correct. In re Delta, at *41.

The Plaintiff argued, and the Court found, that Delta did not verify that all of the hard drives in their eDiscovery service provider’s evidence locker were searched. Id. The apparent breakdown in discovery was summarized as follows:

Defense Attorney emailed service provider list of custodians whose hard drives should have been loaded onto Early Case Data Assessment Software.

Service Provider did not respond with confirmation that each listed person’s drive was on the system.

Service provider only stated that files were identified by “user employee id, not by name.”

Delta did not show it ever confirmed with their service provider that each hard drive that was supposed to be run through Early Case Data Assessment software actually had been.

In re Delta, at *42-43.

The Court coldly stated, “This oversight is a huge hole in Delta’s electronic discovery process, and Delta has not adequately explained why it did not ensure in 2009 that every collected hard drive was actually processed” and searched through the ECDA software. In re Delta, at *43.

The Court found that the Defendant did not conduct a reasonably inquiry. Moreover, the Defendant did not substantially justify its failure to ensure the drives were searched. In re Delta, at *43.

This turbulent eDiscovery flight can be summarized as a failure of community between the attorneys and service provider. The Court zeroed in on the lack of attorney confirmation by the service provider that each hard drive was actually searched.

But that is only the beginning of the eDiscovery issues.

Rule 26(g) Violations

Federal Rule of Civil Procedure Rule 26(g) requires that an attorney of record in a lawsuit sign every response or objection to a discovery request, including initial disclosures under Rule 26(a) (1). Fed. R. Civ. P. 26(g)(1).

The attorney signature certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

(A) With respect to a disclosure, it is complete and correct as of the time it is made; and

(B) With respect to a discovery request, response, or objection, it is:

(i) Consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii) Not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and

(iii) Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

Fed. R. Civ. P. 26(g)(1)

The Court found that “sanctions under Rule 26(g) were appropriate for Delta’s failure to ensure that all collected hard drives were actually searched and to locate the back-up tapes in the evidence locker and for its myriad inaccurate representations that it had done both.” In re Delta, at *45.

The Court found the “appropriate sanction” in the case was to pay reasonable expenses, including attorneys’ fees, caused by its Rule 26(g) violation. In re Delta, at *46-47.

The Court based this decision on Delta’s diligent actions since learning of the discovery mistake. The Defendants’ actions included:

Collection of the two terabytes of data produced in the DOJ investigation and searched the data for documents relevant to this case;

Processed the newly discovered back-up tapes and produced relevant documents;

Employed electronic search terms to accommodate Plaintiffs’ requests;

Added additional custodians to the search list;

Searched material collected in another unrelated DOJ investigation;

Agreed to numerous additional discovery requests made by Plaintiffs; and

Produced documents prior to summary judgment and well before trial.

In re Delta, at *46-47.

Rule 26(e) & Rule 37(c)(1) Violations

The Plaintiffs also leveled Rule 26(e) and Rule 37(c)(1) violations for the unsearched hard drives.

The Plaintiffs sought as sanctions an award for fees and expenses for:

(1) The motion;

(2) The portion of the discovery period that must now be extended;

(3) Plaintiffs’ motion for spoliation sanctions; and

(4) Order barring Delta from using any of the recently produced documents as evidence during any proceeding.

The Court held that Delta would not be sanctioned with the exclusion of the late production, because 1) Delta informed the Court and Plaintiffs after they discovered the issue; 2) Requested the Court suspend the case schedule; and 3) there was no evidence the Defendants willfully withheld the discovery. In re Delta, at *65-66.

The Defendants were sanctioned with reasonable expenses and costs. As the Court explained:

Delta made myriad misrepresentations to the Court and Plaintiffs that its document production was complete, and it waited almost two weeks to inform the Court of the problems with its document production.

In re Delta, at *65-66.

Bow Tie Thoughts

No attorney wants to be fighting against allegations they violated Rule 26(g) or Rule 37(c) for failing to supplement their initial disclosures or discovery responses.

Effective project management, like air traffic control, is vital to effective electronic discovery. While this case has a relative happy landing of only being sanctioned with paying attorneys’ fees and expenses, that must not have been a cheap bill. Moreover, a judge blasting attorneys for a “huge hole” in their eDiscovery process is something no one ever wants to see in case law.

This case highlights what to do when something goes wrong: own up to the mistake and take immediate action to fix it. The attorneys deserve credit for the positive action they took when they learned of the error.

Interfacing with an eDiscovery service provider is a must for most law firms, unless they have brought eDiscovery in-house. Even then, the lawyers still need to effectively communicate with the eDiscovery professionals on what has been searched or not searched. There are many ways to verify work has been done, such as with check-lists, weekly project status calls, case wikis and other project management tools. Which ever is used, make sure they are consistent, work is verified and the information is easy to report if questioned in Court.

A service provider that does not effectively communicate with its lawyers can quickly find itself on the no-fly list if their law firm client endures the crash landing of Rules 26(g), 26(e) and 37(c) violations because of miscommunications on hard drives sitting unsearched in an evidence locker. Such miscommunications can be very innocent, but result in expensive motion practice. Effective project management and communications are the best means to avoid such mid-air collisions of Rules 26(g) and 37(c)(1).