Archive: July 24, 2014

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Counsel’s Failure to “Examine Critically” Client’s Representations about “Existence and Availability of Documents” was “Overriding Reason” for Discovery Problems

Counsel’s Failure to “Examine Critically” Client’s Representations about “Existence and Availability of Documents” was “Overriding Reason” for Discovery Problems

Brown v. Tellermate Holdings, Ltd., No. 2:11-cv-1122, 2014 WL 2987051 (S.D. Ohio July 1, 2014)

While the preservation, review, and production of ESI often involves procedures and techniques which do not have direct parallels to discovery involving paper documents, the underlying principles governing discovery do not change just because ESI is involved. Counsel still have a duty (perhaps even a heightened duty) to cooperate in the discovery process; to be transparent about what information exists, how it is maintained, and whether and how it can be retrieved; and, above all, to exercise sufficient diligence (even when venturing into unfamiliar territory like ESI) to ensure that all representations made to opposing parties and to the Court are truthful and are based upon a reasonable investigation of the facts. As another Judge of this Court has observed, “trial counsel must exercise some degree of oversight to ensure that their client’s employees are acting competently, diligently and ethically in order to fulfill their responsibility to the Court,” Bratka v. Anheuser–Busch Co., 164 F.R.D. 448, 461 (S.D.Ohio 1995) (Graham, J.). That holds true whether the bulk of the information relevant to discovery is ESI or resides in paper documents.

In this age discrimination case, the court determined that both defendant and counsel failed to uphold their discovery obligations, including by failing to timely produce ESI and by failing to make timely efforts to preserve.  The court observed, however, that the “significant problems arose in this case for one overriding reason: counsel fell far short of their obligation to examine critically the information which Tellermate gave them about the existence and availability of documents requested by the Browns.”  “As a result, they did not produce documents in a timely fashion, made unfounded arguments about their ability and obligation to do so, caused the Browns to file discovery motions to address these issues, and, eventually, produced a key set of documents which were never subject to proper preservation.”  Accordingly, the court ordered that defendant was precluded from “using any evidence which would tend to show that the Browns were terminated for performance-related reasons” and also ordered monetary sanctions, to be paid jointly by defendant and counsel. Read More

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