E-Discovery Sanctions May Be Entered and Have Consequences Long After Litigation Concludes

Even after a particular case has concluded, the risk of sanctions arising from e-discovery violations persists. Green v. Blitz U.S.A. was one of many products liability suits alleging injuries resulting from the defendant’s failure to equip its gas can with a “flame arrester.”

Over a year after the conclusion of the trial and entry of final judgment in Green, the court entered monetary and non-monetary sanctions against the defendant for its failure to adequately preserve and identify potentially relevant documents. Because the matter had closed, many of the non-monetary sanctions under Rule 37(b)(2) were not available. Accordingly, the court fashioned a creative non-monetary sanction requiring the defendant (1) to provide the sanctions opinion to all plaintiffs in any litigation against the defendant for the prior 2 years; and (2) to file the opinion with any court in any new lawsuit in which the defendant is a party for 5 years following entry of the opinion.

Like many opinions issuing sanctions for e-discovery violations, at first glance, Green appears to present somewhat extreme facts reflecting the defendant’s electronic discovery failures:

• The defendant’s employee charged with the collection of relevant information testified that he was computer illiterate;
• That employee did not perform any electronic search for emails or talk to the IT department in connection with his search;
• No litigation hold directive was given to employees; and
• Over the course of the relevant period, numerous emails were sent by the IT department instructing employees to delete old emails.

The result: numerous relevant and inculpatory documents were never produced (and others, likely, were not preserved).

Long after the Green trial concluded, some of these documents were produced in another suit against the defendant arising out of the same alleged product defect. Perhaps most notably, these documents included an email received by the employee charged with the document collection with “Flame Arrester” as the subject which — contrary to defendant’s defense at trial — admitted that the relevant technology existed. As to this document, the court found that “[a]ny competent electronic discovery effort would have located this email.”

While the facts giving rise to the defendant’s e-discovery failures seem extreme, Green provides valuable lessons for executing any e-discovery preservation and collection plan. For example, Green once again highlights the dangers of not having developed a litigation hold procedure and issuing an adequate litigation hold when appropriate. Likewise, while charging a computer illiterate employee with sole responsibility for discovery collection is an obvious gaffe, Green should nonetheless serve as a reminder that choosing appropriate personnel to work in conjunction with counsel is critical to a defensible collection plan. Finally, given the nature of the sanctions here, parties involved in repeated litigation should be aware that they could continue to face consequences from e-discovery violations even well after the conclusion of the litigation in which they occurred.