Melissa Hazell Davis: Cost-Saving Measures Are No Excuse for Discovery Failures

Extract from Melissa Hazell Davis’s article “Cost-Saving Measures Are No Excuse for Discovery Failures”

Courts are increasingly sanctioning, or otherwise holding accountable, parties responsible for either improperly collecting, failing to collect, destroying, or generally failing to produce relevant electronically stored information (ESI) during discovery. As technology develops and communication habits change, more discoverable information than ever before is being exchanged on messaging and social media platforms. While searching and retrieving information from these platforms recently emerging in popularity (like Slack) is not always easy, courts are not sympathetic to the difficulties parties face during data collection and review since collection and review is possible with most reputable e-discovery vendors.

In Red Wolf Energy Trading v. Bia Capital Management, _ F.Supp.3d __, No 19-10119, (D. Mass. Sept. 8, 2022), the court entered a default judgment against two of the five defendants in a trade secrets case and ordered that reasonable attorneys’ fees and costs be paid associated with the corresponding motion to compel. In Red Wolf Energy Trading, the court issued an order in response to the plaintiff’s first motion to compel requiring the defendants to review the documents that had been produced and to supplement the production, if necessary (concerning Google Suite documents expressly) and all other responses to requests for production, including Slack messages, when the plaintiff was first concerned with the deficiencies in the defendants’ production. Shortly thereafter, one of the the defendants submitted an affidavit stating that he had complied with the court’s earlier order, that he had worked with counsel to gather documents, and he had “reviewed our Slack communications” and provided all relevant Slack channel communications to counsel. 

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