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Lee Wedekind III
Jax Daily Record Monday, Apr. 7, 201412:00 PM EST

Bar Bulletin: When is too little too late in e-discovery?

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by: Lee Wedekind III

A recent decision from the U.S. District Court for the Southern District of Florida underscores the importance of maintaining clear communications with opposing counsel in conducting e-discovery.

The decision was unusual in that it compelled a pharmaceutical company to propose adequate search terms and awarded attorneys’ fees, despite the parties’ having resolved the dispute prior to the March 11 hearing.

The District Court determined that the company’s prior failure to cooperate directly resulted in the filing of the motion to compel and justified the imposition of monetary sanctions. (See Procaps S.A. v. Patheon Inc., 2014 BL 81300, S.D. Fla., No. 1:12-cv-24356-JG, 03/18/14.)

The beginning of this discovery dispute arose early on for Procaps, when it failed to institute a formal litigation hold to maintain potentially discoverable documents and information.

Thereafter, Procaps responded to discovery requests from defendant Patheon by permitting its employees to perform independent self-searches for Electronically Stored Information (“ESI”) without first seeing Patheon’s discovery requests or conferring with Procaps’ attorneys to develop a list of search terms.

Based on these preliminary issues in responding to Patheon’s discovery requests, the court ordered that a forensic analysis of Procaps’ electronic media be conducted and that the parties agree to a list of proposed search terms.

Counsel for Procaps proposed a search of eight terms in English, when most of Procaps’ employees spoke Spanish (Procaps is based in Columbia).

Patheon objected to Procaps’ approach, and counsel conferred during two telephone calls and exchanged a series of emails.

In these emails, which the court reviewed at length, counsel for Procaps was evasive regarding its obligation to confer with Procaps’ employees to develop appropriate search terms. Failing to reach agreement on this point, Patheon filed a motion to compel.

Although Procaps ultimately resolved the issue of whether ESI custodial input had been used in creating the search terms, the court concluded that the Procaps’ failure to communicate (and when it did, unclearly) forced Patheon to file a motion to compel: “Procaps lead counsel’s refusal to answer simple and direct questions, his silence on the specific issue when providing information on another related issue, and his vague objection to Patheon’s purported efforts to demand additional obligations all generated the impression that Procaps’ counsel had not, and would not, obtain substantive input from his client on suggested search terms … Procaps’ communications were unhelpful and cryptic.”

The court explained that outside counsel “must carefully craft the appropriate keywords , with input from the ESI’s custodians as to the words and abbreviations they use,” citing William A. Gross Constr. Assocs. Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009).

At the hearing, Procaps’ lead counsel agreed that the law did require him and his firm to receive custodial input on the appropriate search terms. He also stated that Procaps did in fact obtain input from the custodians, though he failed to state exactly when the input was provided.

In response to the court’s instructions, following the hearing Procaps filed a declaration from counsel that detailed the steps its attorneys took to gather input from ESI custodians about the proposed search terms.

According to Procaps’ declaration, the attorneys spoke with most of the custodians on March 6 or 7, after the motion to compel was filed. This was inconsistent with lead counsel’s statements at the hearing.

“There are two problems with Procaps’ concession that it must obtain employee input on search terms: (1) it was made only after Patheon filed its motion to compel; and (2) its pre-motion conduct, in the email exchanges and telephone conversations, communicated a different position — that its counsel was not going to obtain input from the client’s ESI custodians, that the attorneys would later receive input only about mere translations.” Procaps’ counsel’s refusal to affirmatively state, in the good faith conference or subsequent exchange of emails, whether he agreed with Patheon’s view on the appropriate process by which it was required to obtain search terms, sent the message that he “disagreed.”

In light of Procaps’ counsel’s conduct, the court granted the motion to compel, noting it was doing so to require that counsel obtain search term input from the client’s ESI custodians, and to award $3,750 in attorneys’ fees.

The fee award allocated $1,000 to lead counsel personally, and advised the law firm to determine which attorneys were directly involved in the pre-motion exchange of e-mails and therefore caused, or helped cause, the discovery motion.

In conclusion, the court provides this takeaway: “The ‘Sounds of Silence’ may be a catchy tune for a Simon and Garfunkel song and album, but it is a problematic, risky, and usually unworkable approach when engaging in a conference designed to eliminate the need for a discovery motion."

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