From Electronic Discovery Law:
In re A&M Fla. Props. II, LLC, 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010)
Where plaintiff’s counsel “failed in his obligation to locate and produce all relevant documents in a timely manner” by failing to gain a sufficient understanding of plaintiff’s computer systems resulting in significantly delayed production of relevant documents, the court declined to impose terminating sanctions or an adverse inference but ordered monetary sanctions against plaintiff and counsel in an amount to be determined.
Upon plaintiff’s production of requested discovery, defendant was surprised by the lack of internal emails produced. Thereafter, plaintiff retained new counsel who, in an effort to settle the issue, ordered plaintiff to perform a “company-wide” search for responsive information. The search was conducted under the direction of Deborah Garfinkle, plaintiff’s Chief Technology Officer. Unfortunately, counsel was “uninformed on the detailed workings of [plaintiff’s] computer system and email retention policies.” Specifically, counsel was unaware of the existence of archive folders to which employees regularly moved emails. The archive folders were therefore not searched.
Eventually, defendant brought the lack of email production to the court’s attention. The parties thereafter agreed to jointly retain a forensic expert to search plaintiff’s computer system. Because plaintiff’s counsel remained unaware of the archive folders, the forensic search did not include them. When certain emails were not found in the forensic search, defendant suspected intentional spoliation.
