Guest Commentary

Bradford E. Biegon, Of Counsel, Hollingsworth LLP

Mr. Biegon recently authored a Washington Legal Foundation Legal Backgrounder, Rules of Evidence as Anchor:  Can They Ground a Spoliation Law Adrift on the Floodtide of Discovery?


Sanctions the Southern District of New York Bankruptcy Court recently imposed on a plaintiff for not timely identifying and locating electronically stored information remind us that, although data storage media have changed, old practices for collecting client information are as applicable as ever.

In re A & M Florida Properties II LLC, 2010 WL 181881 (S.D. Bnkr., Apr. 7, 2010), sanctioned plaintiff because plaintiff and its counsel were unaware that plaintiffs’ employees stored e-mail in both live and archived folders and did not search the archive folders holding thousands of responsive e-mails.  Consequently, “[p]laintiff’s counsel did not fulfill its obligation to find all sources of relevant documents in a timely manner.  Counsel has an obligation to not just request documents of his client, but to search for sources of information.” Id. at *6 (emphasis added). See also Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004).

The practices developed during the era of paper-based discovery apply with equal force to the new digital era.  Rule 26(g)’s “reasonable inquiry” requires a “reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.” Fed. R. Civ. P. 26(f) 1980 Advisory Committee Notes.  Just as counsel were once required to ask employees where and how the employees stored paper documents, counsel must now ask how and where digital data is stored.  Failing to learn whether e-mails are stored in archive folders rather than just the live folders is the same as failing to learn whether responsive paper documents are stored in binders or filing cabinets.

The digital era’s advent neither expanded nor narrowed what constitutes “reasonable inquiry.”  Even if relying exclusively on technology and outside consultants to search for responsive information seems tempting, humans must address the fundamental questions: how and where is electronic information stored?  Those who once searched through warehouses, dusty shelves, and clanging file cabinets are practiced with asking clients’ employees to describe how and where responsive information is stored.  Those queries are no less relevant just because potentially responsive information is stored on hard drives or magnetic tapes rather than paper fibers