The Ramifications of a Lack of Cooperation in Electronic Discovery

by Mike Mintz on November 29, 2011 · 1 comment


Defendant in the recent matter of Pippins v. KPMG in the U.S. District Court for the Southern District of New York to District Court is appealing a preservation order from Magistrate Judge James Cott to Judge Colleen McMahon. The Magistrate’s order requires KPMG to preserve all potential members’ computer hard drives in the not-yet certified class action. This decision mandates that KPMG continue to preserve the 2,500 hard drives it is already preserving, and to potentially preserve another 6,500 hard drives, at a cost of, what defendant alleges to be, over $1,500,000.

Litigants, in-house counsel and electronic discovery experts are anxiously awaiting Judge McMahon’s decision, which is expected to be issued some time after plaintiff’s reply, which due in early December. If McMahon agrees with the Magistrate, then case law requiring entire preservation of electronic discovery will exist in cases where existing case law leans toward the preservation of only a sampled percentage of computer hard drives. This seemingly burdensome ruling begs the questions: What did defendant do to warrant such a harsh order? And, in the event that McMahon affirms the Magistrate’s decision, what can you do as a litigant to avoid the case law’s impact?

In Pippins, defendant was not forthcoming with discovery, uncooperative and unimaginative when sampling the hard drives. While the court agreed that sampling is “part of the mainstream approach to electronic discovery, … KPMG … failed to work effectively with plaintiffs in order to generate a potential means of constructing an appropriate sample.” In fact,”… KPMG did not provide plaintiffs with the opportunity to learn of the hard drive’s contents — such as by reviewing a handful of hard drives that counsel had vetted for privilege or created a log of contents — that might have enabled them to ‘propound targeted requests for specific files contained within the hard drives at lesser cost’” (citation omitted).
In the end, the defendant is simply “suffering from the effects of its own reluctance to work with plaintiffs to generate a reasonable sample that may well be less burdensome to maintain.”

The lesson this case offers to litigants and electronic discovery experts is: cooperate with the other side, come to a sampling agreement and make every effort to be forthcoming. If parties are able to demonstrate meaningful cooperation, there is no reason a court should apply this decision in your case over the mainstream approach of sampling in electronic sampling.

For more on issues with preservation, see Fulbright E-Discovery Alert.

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