Plaintiffs Bar Is Less Savvy About E-Discovery, Consultant Says
Two cases decided earlier this year illustrate that defendants aren’t the only litigants who may be sanctioned for e-discovery violations.
The opinions by a New York judge famous for her early e-discovery decisions and a federal magistrate in Colorado illustrate that the plaintiffs bar knows less about electronic evidence than defense lawyers, according to Leonard Deutchman, the general counsel of e-discovery firm LDiscovery. In an article for the Legal Intelligencer, he says the cases should serve as “wake-up calls” for plaintiffs lawyers.
“Because plaintiffs rarely produce e-discovery, they fail to learn not only how to preserve and produce it, but how even to ask for it,” he writes.
Deutchman offers several reasons why defense lawyers are better at e-discovery, including this one: In large defense-oriented law firms, “e-discovery rolls downhill to the junior associates, who a) are thought to be computer whizzes because they are younger; and b) are powerless to push off the task to anyone less senior.”
Plaintiffs firms, on the other hand, have fewer junior associates who can be stuck with the task. “Unless the Brahmans who often dominate plaintiffs firms are already schooled in or naturally inclined to learn the information technology that underlies e-discovery practice, the art of seeking e-discovery will be lost upon them” and sanctions may be the result.
In one of the cases, Pension Committee v. Bank of America Securities, Judge Shira Scheindlin found in a January opinion that the plaintiffs were careless and indifferent to the duty to preserve documents in an investor suit stemming from the demise of two hedge funds. The judge required plaintiffs to pay costs and ordered a jury instruction allowing an adverse inference about the lost evidence. Scheindlin was profiled in the ABA Journal article “Rockin’ Out the E-Law,” for her famous early e-discovery opinions in Zubulake v. UBS Warburg.
In a second federal case in Colorado, Medcorp Inc. v. Pinpoint Technologies Inc., Magistrate Judge Kristen Mix upheld sanctions, including an adverse inference, for the plaintiff’s destruction of 43 hard drives in an ordinary recycling action.
