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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Ignorance Is Not Bliss With e-Discovery
Posted by Gregg Mayer on Tuesday, March 11th, 2008
In an insurance dispute in Colorado, the attorney for the plaintiff claimed he lacked the technical know-how to properly search a DVD for all of the email messages stored on it, resulting in his failure to disclose several email messages to the defendant. The court, explaining incompetence with a computer is no excuse, ordered the email messages disclosed.
The lawsuit, Garcia v. Berkshire Life Insurance Company of America, involves Tina Garcia’s claim against her disability insurer, who refused to pay her benefits from August 2003 to February 2007. As part of its defense, the insurer sought email messages that Garcia sent from her University of Denver email account.
The university burned all of the email messages onto a DVD and provided it to Garcia and her attorney. In turn, Garcia’s attorney disclosed 10 email strings to the insurer, and then claimed there were only 135 additional email messages that did not have to be disclosed.
As it turned out, there were more than 4,000 email messages on the DVD with more than 1,500 attachments. The insurer complained that Garcia and her attorney were hiding evidence.
In response, Garcia’s attorney said he simply was technologically incompetent and had inadequately searched the DVD for the email messages.
The judge was not convinced Garcia and her attorney did all they could, particularly after the insurer had put them on notice that there were significantly more email messages on the DVD than 135:
Plaintiff’s claim that she acted in good faith with respect to the contents of the DVD goes only so far. Perhaps plaintiff’s counsel can be heard to plead technical ignorance or mistake in his initial dealings with the DVD, but by September 21, 2007, upon the receipt of [opposing counsel’s] letter, he was on notice of the potential problem and was obligated to seek competent professional assistance to ascertain the truth about the contents of the DVD. He did not do so, and apparently still has not done so, in view of his expressed doubt, unsupported by any evidence, that the DVD contains substantial additional material.
Consequently, the court ordered in November 2007 that the email messages be disclosed, despite the added costs and burden to Garcia.
Parties must do all they can to fully disclose relevant evidence required under the Federal Rules of Civil Procedure, including being able to thoroughly search and disclose ESI for litigation
In this instance, the consequences were only the costs of going back to correctly reproduce all of the email. In more extreme cases, courts can enter sanctions for failing to disclose evidence, including precluding use of evidence at trial, or even more damaging sanctions, such as an adverse inference instruction for spoliation.
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