Dodging an E-Bullet Sanction

Publication Source: New York Law Journal

While the courts are becoming more familiar with the legal and technical issues arising from electronic discovery, there is still no shortage of perplexing 'e-issues' confronting judges. In a recent decision rendered by Eastern District Magistrate Judge Arlene R. Lindsay in Toussie v. County of Suffolk, 2007 WL 4565160, the court was admittedly 'challenged to reconcile a party's obligation to preserve relevant evidence with the unique nuances of electronically stored information.'

More specifically, Magistrate Judge Lindsay had to determine whether the Suffolk County 'should be penalized for losing and/or destroying its e-mails' as requested in discovery and as otherwise relevant to the case.

The e-mail discovery dispute in Toussie was first brought to the court's attention in August 2006, when plaintiffs moved to compel the county to supplement its response to plaintiffs' document requests, arguing that 'the County had failed to perform a diligent search for responsive documents, evidenced by the fact that it had only produced two e-mails.' Thereafter, several court conferences were held regarding this issue and a total of five discovery-related motions were brought by plaintiffs, culminating in the motion that resulted in the court's decision as discussed below.

During one of the early court conferences, the court found that the county 'had failed to conduct a system wide search for responsive e-mails,' so it directed the county 'to have its Information Technology Department search the County's servers for responsive e-mails.'

The county's director of management information services responded that 'the County lacked the resources to perform the court ordered search for additional e-mails.' Among other things, this individual advised the court that the county had no system to archive its data, which would have preserved it in a searchable format, and only had a bare backup system, which would have required the purchase of hardware and software to restore and access.

The first estimate he gave was approximately $32,000 for the equipment necessary to access the data. At a subsequent court conference, the court noted its own 'exasperation' with the county's position, admonishing: 'You can't just throw up your hands and say we don't store [e-mails] in an accessible form and then expect everybody to walk away. The question is, how can a plan be implemented to provide for some production.'

Read the full article in the attached PDF.

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Kevin Schlosser is a Shareholder at Meyer, Suozzi, English & Klein, P.C., where he is Chair of the Litigation and Alternative Dispute Resolution Department which has a full roster of available private judges from virtually all disciplines of law. Mr. Schlosser also authors the popular blog, “New York Fraud Claims,” which analyzes the latest developments concerning civil fraud claims under New York law.

Reprinted with permission by the New York Law Journal.