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April 18, 2009

Introducing the Wonder Blunder Award

Shotinfoot Almost 35 years ago, the late Senator William Proxmire introduced his infamous Golden Fleece awards recognizing instances of wasteful government spending.  Though a few Golden Fleece honorees may have been undeserving, most were absurd misuses of taxpayer dollars and warranted the public opprobrium the award bestowed.  Reading a recent opinion from a federal court in Florida, I decided that the electronic discovery industry needed its own Golden Fleece, something to highlight boneheaded moves, obstructive behavior and so forth.  My goal will be to sift a snippet of sense from the ashes of error, to seek some good for all in the flubs of a few.  So, I now announce the Wonder Blunder Award.

Here are my ground rules for the Wonder Blunder:
1. I'll base my opinions on the information available to me in published opinions, news reports, whispered lore or vivid hallucinations.  I won't conduct investigations or test the facts. 
2. I may be wrong.  Feel free to disagree--even vehemently--but rest assured my parents were lawfully wed at my conception.
3. It's my opinion.  Just mine.  Not LTN's or Incisive Media's or anyone worth suing.  It's all just good fun. 

I award the first Wonder Blunder Award to (drum roll) counsel for Humana, Inc. in recognition of their actions described in Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL 982460 (S.D. Fla. Apr. 9, 2009).  Read the opinion, but in a nutshell, two months after the close of discovery and a month before trial, Humana found hundreds of thousands of pages that weren't supposed to exist (but which had been on employees' computers all the time).  Without notifying opposing counsel or the court, Humana's lawyers instructed employees to "print and purge;" that is, print copies of the documents for production and delete the electronic originals. The employees complied, and deleted about 10,000 responsive documents.  Wouldn't want the other side getting any of that pesky metadata or enjoy electronic searchability or easy de-duplicability!  Did I mention they omitted attachments, too?

Then, one of Humana's in-house lawyers found 60,000 potentially responsive documents which she'd been sitting on for 7-8 months because she “did not realize [their] significance”  Why did she overlook their significance?  Because they were flagged for her by Humana's IT department as being the results of a "search of Humana's computers for documents pertinent to this case."  At least she fell on her sword.

Then there were the 35 privileged documents produced by Humana even though they were already listed on the privilege log.

But the Wonder Blunder clincher for me was how Humana's counsel undertook to de-duplicate 60,000 pages of electronic documents--documents that weren't deleted, mind you, but apparently segregated as native ESI.  Per the opinion, Humana reduced the 60,000 documents to just 35 by paying a service provider $30,000-$40,000 "to electronically image the 60,000, compare it to the documents Humana already produced in discovery, and eliminate the duplicates."  Could it really be that the de-duplication was effectuated this way; that is, by converting ESI to images then comparing the images to prior production?  Say it ain't so, Joe!  Say it ain't so!  

Moreover, the claimed 60,000-to-35 documents de-duplication and near de-duplication ratio is something for the record books--or perhaps a book of tall tales.  

What's our souvenir from this circus?  First, you don't have to be evil to screw up e-discovery.  The court found no bad faith here, just gross negligence of counsel.  Lawyer readers:  Would you rather be thought devious or incompetent?  Tougher choice than we care to admit.

And we have another Cool Hand Luke "failure to communicate."  What do you think would have happened if, upon learning of the newly discovered ESI, Humana's counsel had contacted opposing counsel and said, 

"We found some stuff in a place we hadn't thought to look.  We're sorry, and when you hear how it happened, you'll see it was an honest human error.  We will get on the stick to process and produce the items pronto, then talk about whether you need to re-depose any witness.  Because what we found is largely your proprietary information that we agree we're not supposed to still hold, we propose that we shepherd duplicates to the law department and have the custodians delete their copies for your protection. Again, we are sorry, and we will strive to make it right.  By the way, what form of production would you find reasonably usable?"

Would that really have been so hard to do?  Harder than having the court tattoo "BOZO" on your forehead and losing your biggest client?  I mean, can you really stay aboard when the court determines that the caliber of your representation satisfies the standard of gross negligence??  Aren't you ethically obliged to withdraw (or depart) because of conflict and the client's best interest?

Next Lesson: In litigation, absent agreement between the parties or protection from the court, when you even start thinking of directing employees to delete relevant evidence at its source, a little light bulb should go on in your head--wait, wait--make that a thousand kliegs and a klaxon--and give you pause.  The same thing should happen when a client begins a sentence, "I have a program called Evidence Eliminator...."

I suspect we haven't heard the end of this case as the Court declined to issue more severe sanctions with this proviso: "[I]f there are any additional material documents discovered during the forensic examination of the back-up computer system or the 60,000 documents contained in the initially ignored email link provided to [in house counsel], dispositive relief against Humana may well be warranted."

What are the odds that no new responsive, material information will turn up when it's a neutral forensic examiner making the call?



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