Electronic Discovery Law
Court Approves Retention of Independent Technology Expert to Build, Maintain and Operate Discovery Database to Ensure Consistency, Reliability and Accessibility of Information
In re World Trade Ctr. Disaster Site Litig., 2008 WL 793578 (S.D.N.Y. Mar. 24, 2008)
This litigation concerns claims relating to respiratory injuries suffered by rescue and clean-up workers as a result of exposure to toxins and other contaminants in the aftermath of the September 11, 2001 terrorist attacks. Approximately 10,000 cases are before the court.
In this decision, the court approved the Special Masters’ recommendation that Technology Concepts & Design, Inc. ("TCDI") be retained to build, maintain and operate a database, to store the “Core Discovery” that the parties had begun to produce, and will continue to produce, pursuant to the court’s “Core Discovery Order" of November 27, 2007. The court explained that the “Core Discovery” will create a substantial amount of information, including insurance data from scores of contractors and subcontractors, and basic details concerning each plaintiff's claim. The court continued:
Because of the volume of information that will be produced, and the intense time pressures governing production, it is imperative that a means be developed to process and organize the information on a consistent, reliable, and accessible basis. From this information, it should be possible to align plaintiffs readily with the particular defendants against whom they may have a basis to seek recovery, categorize plaintiffs according to their types and severity of injuries, eliminate various defendants from various cases, identify the sequence in which cases should be tried, group those cases with others that appear to be similarly situated, organize and understand the insurance that might relate to particular claims and, perhaps, not to others, and, not least, create paradigms that could lead to settlements.
These goals cannot be achieved unless the database recommended by the Special Masters is approved. Without responsive and reliable information and reports, the parties, the Special Masters, and the Court will not have a common basis to deal with the many and complex issues that regularly arise as this immense and important litigation proceeds. The separate databases maintained by the parties have not been able to produce reliable and consistent information, not even, for example, as to the number of cases that have been filed as of given dates. Needless disputes have arisen in response to the Court's questions, even with regard to what should be basic and undisputable matters.
The court acknowledged the plaintiffs’ concerns about costs, which had been estimated by the TCDI bid to be $249,750 in the first year and $204,000 in the second year. However, the court noted that it had, with the guidance of counsel, previously issued orders designed to reduce litigation expenses in the litigation, contain discovery and reduce the expense of motions practice. It continued:
There is no substitute for an independently created and managed database. Without a common core of reliable information, the approximately 10,000 cases that are before me will become increasingly difficult to manage. Disputes will proliferate, and progress will be slowed. Depositions and other discovery will become necessary, as each side tries to prove facts that their separate databases treat in different ways. The cases will take years longer to progress towards trial or resolution. Expenses to each side will rise in uncontainable ways, making present complaints insignificant. Meanwhile, individual plaintiffs will incur illnesses and some may die, blaming their heroism in the aftermath of 9/11 as the cause, and criticizing government and the courts for indifference and neglect with respect to their claims.
The court observed that, under Rule 53, courts possess ample power to appoint Special Masters, and to support their activities in manners that will create efficiencies and economies. “The importance of these cases is clear, to the litigants and to society. The ability of the court and counsel to cause them to progress towards resolution with due speed, economy and fairness depend very much on the ways that complex information can be organized and reported, reliably, responsively and consistently.”
Accordingly, the court overruled the plaintiffs’ objections and approved the Special Masters’ recommendation.
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