E-Discovery - Managing the Risks to Get the Reward: Best Practices for Construction Lawyers and Their Clients

• Author: By Melissa Beutler Withy, Patrick R. Kingsley, and Peter Bogdasarian
• Pages: 23-37

THE CONSTRUCTION LAWYER 23Volume 41, Issue 3

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The Construction Lawyer

, Volume 41, Number 3. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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THE NEW SPECIALIZATION

E-Discovery—Managing the

Risks to Get the Reward:

Best Practices for Construction

Lawyers and Their Clients

By Melissa Beutler Withy, Patrick R. Kingsley, and Peter Bogdasarian

In 1965, Gordon Moore observed

that the number of components

per integrated circuit would dou-

ble every year;1 in 1975, he revised

this forecast to doubling every

two years.2 These observations are

commonly known as “Moore’s

Law” and reect the belief that

the speed and capability of com-

puters will increase every couple

of years, even while the cost of

computers trends down.

Whether or not Moore’s Law

remains an accurate observation

concerning the pace of techno-

logical advancement,

3

the effects

of the last 50-some years are

all around us. Most Americans

(81 percent) own a smartphone,

while nearly three-quarters of

U.S. adults own a desktop or

laptop computer, and roughly

half own a tablet computer.4

The result of this technological

advancement is the complete

transformation of how compa-

nies do business in the modern

era. Face-to-face meetings and

phone calls now compete with email, texting, and other

methods of communication. Digital les now replace

old-fashioned banker’s boxes, and an entire warehouse’s

worth of documents can now sit on a single shared server.

These technological developments gave rise to an entire

new specialization inside litigation—electronic discovery

or “e-discovery.” In this article, we will provide a general

overview of the e-discovery life cycle once litigation has

commenced. We will start with why mastering this area is

important to counsel, both in-house and external, and pro-

vide a general overview of some of the signicant concepts

and terms deployed in the context of e-discovery. A discus-

sion of the process of identifying and preserving data then

follows, with examples of potential pitfalls and things to

avoid. Once the data have been identied and preserved, the

discussion then turns to how best to collect and retrieve it

for future use. Finally, we will discuss review and production.

Why Go Through the Process at All?

When confronted with new and complex ideas and processes,

it is common for people to examine means to short-circuit

the whole thing and skip to the result. Lawyers are no differ-

ent, and many lawyers, when faced with discovery questions,

including questions about e-discovery, think about the short-

cut. In the last decade, many lawyers have learned hard

lessons when trying to take a quick and easy approach to

e-discovery. Perhaps the following will illustrate.

In Klipsch Group, Inc. v. ePRO E-Commerce Ltd., plaintiff

Klipsch, a headphone manufacturer, sued DealExtreme.com,

a subsidiary of defendant-appellant ePRO, “alleging that it

was selling counterfeit Klipsch headphones.”5 The amount

in controversy was only $25,000. Throughout the discovery

process, ePRO “engaged in persistent discovery misconduct:

it failed to disclose the majority of the responsive documents

in its possession, restricted a discovery vendor’s access to its

electronic data, and failed to impose an adequate litigation

hold even after the court directed it to do so,” allowing “cus-

todians of relevant electronic data to delete thousands of

documents and signicant quantities of data.”6

Klipsch moved for discovery sanctions, and the federal

district court issued an order granting in part and denying in

part Klipsch’s motion, issuing a $2.7 million monetary sanc-

tion to compensate Klipsch for its corrective discovery efforts

and a corresponding asset restraint in that amount, permis-

sive and mandatory jury instructions, and an additional $2.3

million bond to preserve Klipsch’s ability to recover damages

and fees at the end of the case.7 The district court “concluded

that Klipsch had shown that ePRO had willfully spoliated

relevant Unstructured ESI” and “deemed ePRO to be a dis-

sipation risk in light of its persistent failures to comply with

court orders or discovery protocols.”8

ePRO, naturally enough, balked at a monetary sanction

for $2.7 million for a case where the amount in controversy

was $25,000, arguing the sanction was “so out of proportion

to the value of the evidence uncovered by Klipsch’s efforts or

to the likely ultimate value of the case as to be impermissibly

Melissa Beutler Withy

Patrick R. K ingsley

Peter Bogdasarian