Be Ready — Any Litigation Can Have eDiscovery

Expensive eDiscovery sanctions aren’t just limited to civil litigations involving misbehaving corporate officers. While we most often discuss eDiscovery in the context of corporate litigation, it arises in other contexts as well. In one Washington state personal injury case, the topic of electronic discovery was raised in a motion by the plaintiff, alleging that the Kings County Sheriff’s office had not complied with its discovery duties and asking that the court issue sanctions against the defendant.

The case had already settled for $10 million in January 2011, when the allegations from the plaintiff arose that the county officials hadn’t complied by providing valuable eDiscovery evidence and the court was asked to order that an additional $3.3 million be paid. The court agreed with the plaintiff that the offenses were sanctionable, but issued only a $300,000 penalty.

According to the motion documents, the plaintiff alleged that the Sheriff intentionally withheld:

  • A thread of emails to [Deputy Matthew] Paul’s supervisor about his behavior at the Basic Law Enforcement Academy, where concerns were raised about Paul having “exhibited behaviors that were a concern” and had used force that was “far above the norm” when working with a smaller female trainee.  While the county indicated that a search failed to locate these emails, Judge Arend, in the ruling, noted that “any competent electronic discovery effort would have located this email.”
  • There was also a citizen complaint against Paul in May 2010 after a Seattle resident stopped to videotape Paul and other deputies deal with an intoxicated person and the resident was tackled by Paul and suffered a broken nose.  The resident has filed a federal civil-rights lawsuit against Paul and the county.
  • There were also documents about another use-of-force incident that was not put into Paul’s personnel file until the Harris’ case was settled.

The court characterised the failure of the Sheriff’s office to produce this information as a “reckless indifference” on their part. The facts that were witheld were “indisputably relevant” to the facts of the case and it was not reasonable to believe that they were unable to find and produce the electronic files.

The initial $300,000 sanctions are not the end of the story, however, as the judge has left open the issue of further damages to compensate the family of the plaintiff for the civil rights cause of action that was foregone by settling — and which they claim would have been filed, had the defendant sheriff’s office provided these documents.

Whether the failures were intentional or not, the court recognized that a competent eDiscovery effort would have uncovered at least some of the evidence that was withheld. Judges who understand eDiscovery will recognize what is and is not a competent effort and will not reward parties who shirk their duties.

For any litigation, it makes sense to have experts on hand to perform your collection, culling and managed review of documents. Doing so ensures that your production will be complete and acceptable and will help to avoid sanctions and after the fact motion practice that could add additional millions onto any settlement or award to the opposition. Most large corporate parties are well prepared for eDiscovery, but it can be relevant to litigation of any type or scale. Therefore, it’s worth it to be ready.