Blankenship v. Fox News Network, LLC, Civil Action No. 2:19-cv-00236, at *2 (S.D.W. Va. June 14, 2021) serves as a lesson in how not to conduct discovery.  In this matter, there were multiple defendants: one of which demanded Plaintiff produce ESI in TIFF image format with load files; and others of whom demanded the production be made natively with metadata, inclusive of attachments and complete email chains. Blankenship, at *8.  Plaintiff did not discuss the different format requests with counsel for the propounding party.  Nor did Plaintiff comply with any of the Defendants’ production requests.  Rather, the Plaintiff chose to print the responsive ESI (whereby converting the ESI from the format in which it is maintained in the ordinary course to hard copy), and then scanned the paper content into a PDF file.  Taking these steps not only stripped all metadata from the production but sacrificed document unitization (i.e., three 10 page emails were scanned as a single 30 page PDF). Blankenship, at *3.

The parties met and conferred over the non-conforming production but efforts to resolve amicably the dispute failed.  Indeed, five days after Plaintiff promised the Defendants it would complete its production, Defendants learned the Plaintiff had not yet started retained an eDiscovery vendor or started its search. Id.  And so, Defendants filed a motion to compel seeking a date certain when Plaintiff would complete its production in proper format.  In support of its motion Defendants used against Plaintiff its own arguments (from earlier filed motions) that searching for responsive ESI “should be simple and straightforward.” Blankenship, at *6.[1]

In opposition Plaintiff responded, among other things, that it had retained an ESI vendor to search for and collect ESI and would be prepared to commence a rolling production in 24 days. Blankenship, at *8-9.

The Magistrate Judge’s frustration with Plaintiff’s discovery conduct was apparent. Blankenship, at *10.  Among other things, the Magistrate Judge found that Plaintiff’s counsel “absolutely misrepresented” when ESI would be produced and its conduct caused the Magistrate to have “grave concerns” regarding whether the attorney complied with his “ethical obligations” in his representations to opposing counsel. Blankenship, at *11-12. Ultimately, the Magistrate ordered Plaintiff to pay for Defendants’ costs in bringing the motion.[2]

Although this case may have involved gamesmanship or bad faith, it may also have been the result of counsel lacking ESI competence.  And so, this case serves as a good reminder that lawyers must meet their basic duty of competency when handling and producing ESI.  Indeed, consider ABA revised Comment 8 to Rule 1.1, Model Rules of Professional Conduct 1.1. which reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject

(id.) (emphasis added).

Many states have adopted this rule and others have required a specific amount of annual CLE training in the area of ESI. There are ample CLEs available to help attorneys better understand ESI and best practices when dealing with electronic data.  We should all undertake efforts to understand ESI as electronic data is here to stay!

Another important but related topic that can cause these discovery issues is over-delegation of lawyer responsibilities to e-discovery vendors. It is critical to understand that it is the lawyer who is ultimately responsible for representations made to the Court and opposing counsel. Even when working with a vendor, it is important that the attorney direct and supervise all efforts, which requires the attorneys to be conversant in and understand what the vendor did.

[1] Other deficiencies that plagued Plaintiff’s production were briefed in the motion including Plaintiff’s failure to identify the specific requests their production was responsive to. Blankenship, at *8.

[2] Although Plaintiff objected to the Magistrate Judge’s Report & Recommendation, Senior District Judge John T. Copenhaver, Jr. upheld the Magistrate Judge’s conclusion. Blankenship, at *24-25.