In e-discovery, collaboration between multiple teams for tracking, monitoring and ensuring a defensible and comprehensive e-discovery process is essential. Project managers play the vital role of coordinating and managing this process so that matters stay on track and important information does not fall through the cracks. But just when you think the importance of e-discovery project management has been sufficiently established, another case, In Re Delta/AirTrain Baggage (N.D. Ga. Feb. 3, 2012), pops up reinforcing its significance. This antitrust litigation case against Delta Airlines and AirTran arose amid a number of legal activities, including a DOJ regulatory inquiry, asserting a violation of the Sherman Act due to the two companies charging passengers $15 baggage fees.  While the United States District Court granted spoliation sanctions against Delta for a violation of multiple Federal Rules of Civil Procedure (FRCP) rules, a “huge hole” in Delta’s e-discovery processes resulted in part to 60,000 pages of responsive material being omitted from production to the plaintiffs, violating FRCP Rule 26(g).

Under the often forgotten FRCP Rule 26 (g)(1), an attorney signature on a discovery request “certifies that the discovery responses are complete and correct to the best of his [or her] knowledge, information and belief.” To satisfy this requirement, “a reasonable inquiry into the factual basis of his response, request” must take place to verify that the discovery responses were complete and correct.  The court held that Delta did not meet this obligation based on its false representation that:

1. All relevant hard drives were searched for responsiveness
2. All relevant backup tapes were identified

False Representation #1: All relevant hard drives were searched

Because of miscommunications between Delta’s legal team and IT department, relevant hard drives were not uploaded into Delta’s document search tool. As a result, thousands of responsive documents were not produced to the plaintiffs, leading the court to state, “this oversight is a huge hole in Delta’s electronic discovery process.”  Here is the sequence of events that took place:

• The legal team emailed the IT department a list of custodians whose hard drives need to be uploaded into Delta’s search tool
• Two weeks later, legal followed up with IT to confirm all data collected from the custodians’ hard drives had been uploaded
• IT responded stating that files had been identified by “user employee id, not by name”
• No confirmation was given by IT that the relevant hard drives had been uploaded and searched for responsive material

Project Management Tip:  Establish the Workflow

Establishing a repeatable workflow for managing evidence preservation and collections will make e-discovery outcomes much more defensible and predictable. Delta’s legal team tried to communicate with the internal IT department; however, the IT department did not know what was specifically expected of them, and the legal team did not adequately document and verify that the IT department understood their request. In short, project management workflows equal consistency and quality of work product by ensuring each stakeholder knows what is expected of them and the process is fully documented throughout the e-discovery life cycle.

False Representation #2: All relevant backup tapes were identified

Based on communications between Delta’s legal team, the IT department and the outside document retention service provider, Delta’s counsel thought that all backup tapes had been identified for search. In subsequent conversations, the IT department never notified Delta’s legal team that additional backup tapes related to a different matter where also being stored in the company’s evidence locker, which may have been relevant to the case. Beyond email and phone conversations, the court stated, “Delta’s counsel should have inspected the tapes in this locker, as it stores only the tapes that are collected for litigation and investigations.” To their credit, Delta’s legal team took immediate action to remedy their mistakes once they became aware of the errors.

Project Management Tip:  Project Planning

Before litigation ensues, legal teams must have a lucid understanding of who the stakeholders are in the e-discovery process – legal counsel (in-house and outside), service providers, IT, records management and any other divisions under the information governance umbrella that may come into contact with the e-discovery process. The best way to accomplish this is to hold a meeting with the key players from each department outlined above and create a discovery plan that defines the objectives and expectations for each stakeholder, as well as the technologies (capabilities and limitations) available to support the process. In addition to coordinating activities, this meeting will foster goodwill between departments and hopefully produce the essential buy-in needed to keep the e-discovery process moving smoothly.

 Conclusion

The primary lesson to be learned from this case is clear communication between all stakeholders in the e-discovery response process is a necessity. Lawyers must be willing and able to communicate with service providers and IT on everyday e-discovery technical issues, such as where backup tapes are stored, what data is readily available for searching and what impediments might exist with regards to legacy data. Without clear communication and transparency, data will fall through the cracks and lead to court sanctions like those seen in this case.