A client recently came to me with a thumb drive. The client needed to respond to discovery and had gathered what it thought were responsive materials. Here is how the conversation went from there:
Client: Here is a thumb drive with emails and other file documents to produce.
Me: How did you gather this information?
Client: I ran some searches [of emails]; this is what we have.
Me: What searches did you run?
Client: I did not keep the search terms, but there are a lot of emails here. I am pretty sure everything is in here.
I have had this same type of conversation with clients dozens of times. At this point in the conversation there is significant pressure on both client and attorney to stop the document gathering effort. The client does not want to pay for the attorney to search for more material and review it. The attorney does not want to make things unnecessarily expensive for the client, or review any more emails.
What could go wrong here? According to the court in Branhaven, LCC v. Beeftek, Inc., 288 F.R.D. 386 (D. Md. 2013), relying on what the client provides without meaningful effort and due diligence on the part of the attorney to review the material and seek out additional responsive material is sanctionable conduct.
In Branhaven, the defense served discovery on the plaintiff’s counsel, who forwarded the discovery to the client. Id. at 389. Forwarding discovery requests and trusting the client to find appropriate responses is sanctionable conduct for an attorney, so the Court held. Id. at 389-90. Instead, counsel must make ‘a reasonable effort to assure that the client has provided all the information and documents responsive to the discovery demand,’ Id. at 390 (citing Poole v. Textron, Inc., 192 F.R.D. 494, 503 (D. Md. 2000) (quoting Fed. R. Civ. P. 26(g) advisory committee’s notes to the 1983 amendments). Emphasizing the point again later in the opinion, the Court stated that it would not endorse a “hands-off” approach to discovery gathering in which the client gathered documents and the attorney trusted that effort without continued involvement in the process. Id. at 392. Stated more strongly, “counsel has an affirmative duty to assure that their client responds completely and promptly to discovery requests.” Id.
The plaintiff’s counsel in Branhaven also employed a tactic I have seen used many times in which a party answers document requests by stating that responsive material would be made available for inspection and copying at a mutually agreeable time—even though the material had not yet been identified. Id. at 390. The Court held that giving that response prior to having identified responsive materials was a deception on the other party, also subject to sanctions. Id. at 390-91.
It was no defense for the attorney involved that he promptly sent the document request to his clients. It was no defense that the client had produced a few hundred emails initially (and later produced 112,106 page of materials, two days before the corporate designee depositions were to take place). It was no defense that the plaintiff in Branhaven was a “start-up” company and had limited funds to respond to electronic discovery requests.
The Court held, “There is no more obvious and critical source of information in the 21st century than a company’s email accounts. Plaintiff’s counsel’s failure to identify and produce this discovery in a timely fashion and in an acceptable form and manner while suggesting — if not misleading defendants — that it had identified responsive documents is sanctionable.” Id. at 391. More dramatically, the Court opined, “If all counsel operated at this level of disinterest as to discovery obligations, chaos would ensue and the orderliness of the discovery process among counsel in federal courts, which is exquisitely dependent on honorable attorney self-regulation, would be lost.” Id. at 392-93. The Court sanctioned both counsel and his client.
There are many lessons from the Branhaven opinion beyond the scope of this article. But one that I have recently been emphasizing to my clients is inspired by working on math homework with elementary school-aged children—show your work. How better to show due diligence and good faith in performing discovery searches than to keep a record of exactly what searches you ran, and share that record with opposing counsel? This approach puts the ball back into opposing counsel’s court. If he or she does not return with any new suggestions, and you mistakenly omit relevant material, you have a compelling argument that the omission was in good faith. As with my second grader, if you get the right answer but cannot show how you reached it, you are not getting full credit. I like getting full credit for my clients.
In a world where emails are ubiquitous, even if you have produced every relevant email, the other side can always plausibly claim you might have missed something—unless you show your work and get opposing counsel to agree to the search parameters. If you run a search that produces few
results, you can show that you eliminated that search because it was too narrow. Likewise, if you run a search that produces a million hits, you can eliminate that search as well.
This approach should not only help you avoid sanctions, but it will also save you document review costs as searches with appropriate amounts of results will be reviewed, while other searches will be appropriately discarded.