Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of March 2-8. Here’s what’s happening.

Two Examples of Why Discovery Rules Aren’t Suggestions

This week, we have two examples of why you should always follow the court’s discovery rules and respond promptly, no matter how straightforward the matter.

First, Kelly Twigger writes on eDiscovery Assistant about U.S. Bank N.A. v. Lindsey, in which the bank was seeking declaratory judgment to foreclose on real property and recover a $160,000 mortgage balance.

But what seemed like a straightforward path to victory for U.S. Bank turned sideways because of Rule 26 of the Federal Rules of Procedure. The 2015 amendments to the Rules changed the initial disclosures required under Rule 26 to include information that might be harmful to the disclosing party. For example, parties must provide relevant documents and identify key witnesses with relevant information, as well as potential damages.

But U.S. Bank failed to produce or identify any evidence or witness during discovery, the defendant argued in a response to U.S. Bank’s motion, and the magistrate judge agreed, striking all the undisclosed evidence in U.S. Bank’s summary judgment brief. Here’s how U.S. Bank failed to comply with Rule 26, likely costing it a quick victory and monetary recovery. The bank didn’t:

• Identify the mortgage coordinator as a witness;
• Disclose the documents attached to its summary judgment motion;
• Provide a calculation of damages.

As Kelly writes, “The rules of the court are applied to a case no matter how much is at stake or who the parties are.” In this matter, the defense capitalized on its knowledge and application of discovery rules. Had the bank been as methodical in its process, the summary judgement result likely would have been much different.

Next, Michael Berman writes about Morse Elec., Inc. v. Stearns, Conrad and Schmidt, Consulting Engineers, Inc. on the EDRM Blog. Electronically stored information (ESI) protocols are at issue here. The court instructed the parties to submit their proposed ESI protocols but only the defendant filed a motion to adopt its proposal. Even after two extensions, the plaintiff never responded to the defendant’s motion nor did it submit its own proposed ESI protocol.
Next, a magistrate judge found the plaintiff “failed to offer any cause or justification for its failure to state objections in a timely manner; … wholly failed to comply with the ESI protocol in the scheduling order; and … failed to produce responsive documents in discovery.” Plaintiff then objected to the magistrate judge’s order “as placing an undue burden and expense … in requiring it to comply with the ESI protocol.”

A district judge held the ESI order was controlling: “At no time did Plaintiff object to the ESI protocol as unduly burdensome due to the cost nor did Plaintiff raise this issue in response to the motion to compel. … Further, during discovery and more than one year ago, Plaintiff was provided with an opportunity to either agree with Defendant on how to produce ESI or to file its own plan…. Plaintiff failed to do so and Plaintiff did not object when Defendant requested that the court adopt its proposed plan.”

Bottom line: If you fail to submit your own ESI protocol or object to the other side’s proposal in a timely manner, don’t be surprised if a judge enforces the protocol the other party submitted.

Reminder: Meet Array at Legalweek!

If you’re attending Legalweek from March 24-27 in New York City, we invite you to connect with the Array team at Bridges Bar in the Hilton Midtown to discuss the latest in legal tech and the challenges shaping the industry.

Other recent eDiscovery news and headlines:

• Vulnerabilities in Modern Data Preservation Postures (eDiscovery Today)
• What's Old is New Again: Why Document Review Protocols and Custodian Interviews Still Matter in AI-Driven eDiscovery (Arnold & Porter eData Edge)

Julia Helmer; Director, Client Solutions

With 15 years of expertise, Julia excels at optimizing enterprise eDiscovery workflows from start to finish. With a deep understanding of how to seamlessly integrate workflows across various eDiscovery platforms, Julia creates tailored solutions for data identification, legal holds, ESI collections, and productions. By harnessing the power of Technology Assisted Review and Analytics, she delivers efficient, cost-effective results that align with best practices and budgetary constraints. Julia’s exceptional communication and customer service skills have fostered strong, lasting relationships with both clients and Project Management teams, enabling her to effectively problem-solve and drive success across numerous projects.