Litigants who fail to meet e-discovery obligations run the risk not only of being sanctioned, but also of being subject to a court order compelling them to retain an e-discovery vendor. While the use of e-discovery vendors is becoming a common practice, it may add considerable expense to the already costly discovery phase of litigation. Additionally, compelled retention of a vendor may reduce litigants’ control over their own document production.
In Logtale, Ltd. v. IKOR Inc., the United States District Court for the Northern District of California warned defendants that continued problems with their document production would result in a court order compelling them to retain an e-discovery vendor. Plaintiff argued that defendants failed to adequately search for responsive electronically stored information (“ESI”) and that their document productions were incomplete. Defense counsel explained he had instructed his clients to search their computers and produce responsive documents, and acknowledged there were deficiencies in the first production. When a second search was also deficient, plaintiff moved to compel discovery.
The court found defense counsel had not been sufficiently proactive in ensuring his clients were conducting thorough and appropriate document searches. The court explained “it is not enough for counsel to simply give instructions to his clients and count on them to fulfill their discovery obligations.” As the court further observed, Rule 26(g) of the Federal Rules of Civil Procedure places “an affirmative obligation on an attorney to ensure that a client’s search for responsive documents and information is complete.” The court concluded that where “counsel notices obvious gaps in the production of documents by his client, he is obligated to make reasonable inquiry as to the thoroughness of that search.”
Ultimately, the Logtale Court ordered defendants to pay plaintiff’s attorneys’ fees for time spent resolving discovery issues. Defendants and their attorneys were each ordered to pay part of the fees because the court found both at fault for the deficient discovery responses. In addition to sanctions, the court also put defendants on notice that continued ESI production problems would result in a court order compelling them to retain an e-discovery vendor at their own expense.
Logtale serves as an important reminder that courts are becoming increasingly less tolerant of inadequate and ineffective ESI collection methods. Litigants may undertake their own collection and production of ESI; however, courts have little patience for inexperience and, more specifically, less-than-diligent efforts. Rather than review preservation and collection methods, courts may simply order a litigant to retain a vendor if the party is unable to comply with its discovery obligations.