Many lawyers now have a good understanding of electronic discovery law and technological advances, and the updated ABA model rules require this understanding to fulfill the ethical requirement of competence. For attorneys who lack this knowledge or who attempt to claim ignorance to evade discovery obligations should take note: courts will likely not stand for it.
In the ongoing case of Harris v. Subcontracting Concepts, LLC, Civ. No. 1:12 – MC -82(DNH/RFT)(N.D.N.Y. Mar. 11, 2013), the U.S. Department of Labor filed a lawsuit against the defendant, Subcontracting Concepts, LLC over a wage and hour dispute. The Memorandum Order concerned defendant’s Motion to Reconsider a prior order to compel discovery. The defendants argued that if it were to comply with the subpoena, it would produce nearly 45,000 pages of documents, which was overly burdensome for their 22 employees.
Prior to the Motion to Compel, the court had ordered a representative sampling and Affidavits to determine if the defense production could be reduced. However, the court found an Affidavit by the defendant VP of Information Technology to be very “telling.” The VP’s Affidavit admitted that many of the documents sought were in both physical and electronic form.
As the information was available in electronic form, the judge ruled the defense production would not be overly burdensome. “Although this Court may not share the technological sophistication of Mr. Wise [the VP], I certainly know that the amount of time, cost and effort expended to produce these records from the computer is significantly less than by hand. With the advent of software, predictive coding, spreadsheets, and similar advances, the time and cost to produce large reams of documents can be dramatically reduced. Further, suggesting to the [plaintiff] DOL to accept production of these documents in their native format, or through a zip file, or some other electronic transmission should minimize [the defendant’s] anxiety.” Id. at 11.
The court ordered the defense to comply with the plaintiff eDiscovery requests and denied their motion for reconsideration.