Allison Dunn: ‘The Law Is Not a Game’: Plaintiff Awarded Default Judgment, Defendants Sanctioned for ‘Extreme’ E-Discovery Misconduct

Extract from Allison Dunn’s article “‘The Law Is Not a Game’: Plaintiff Awarded Default Judgment, Defendants Sanctioned for ‘Extreme’ E-Discovery Misconduct”

Cutting corners to save expenses on a digital forensic expert may end up costing a pair of Boston attorneys and their clients significantly more in the end.

Last week, U.S. District Judge Mark L. Wolf of the District of Massachusetts granted default judgment to the plaintiffs, as well as their second motion for sanctions in Red Wolf Energy Trading v. BIA Capital Management, a case involving unfair and deceptive trade practices. The defendants participated in “repeated extreme misconduct” despite stern warnings and digital discovery orders by the court, according to the judge’s 72-page order filed Sept. 8.

“The law is not a game, and, as the court told defendants, civil discovery is not a game of hide and seek. … The decision in this case should encourage litigants to understand that it is risky business to recklessly or deliberately fail to produce documents, and perilous to disobey court orders to review, and if necessary, supplement prior productions,” Wolf wrote.

Among several items, Red Wolf Energy Trading sought communications in 2019 between individual defendants through a now-popular messaging app, Slack, according to the opinion. Messaging services such as Slack, Microsoft Teams, and Google Chat have been go-to options for corporate communications, particularly with remote work during the COVID-19 pandemic.

But in this pre-pandemic-era case, the defendants sought the help of a consultant to develop a search protocol that would pull relevant messages containing specific terms because a former expert was unaware of a tool that could search Slack messages at the time, according to the judge’s order.

The documents were turned over to the plaintiff, but the formatting was difficult to read, unlike a cohesive conversation that may come up on email or text messages, explained John A. Sten of Boston-based Armstrong Teasdale, the plaintiffs’ lead attorney.

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