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

AuthorBy Melissa Beutler Withy, Patrick R. Kingsley, and Peter Bogdasarian
Published in
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
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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,
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

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