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How NOT To Do eDiscovery - Especially If It's On Purpose

I was frankly shocked to read the updated reports about the 2002 Pershing Park case in Washington DC. According to the plaintiffs, riot police rounded up and arrested hundreds of non-violent protestors in Pershing Park. The problem is that the round-up got everyone in the park - not just protestors, but also nurses on their way to a convention, bicyclists and local lawyers who often cut across Pershing park on their way to a nearby court house.

They were arrested, handcuffed, bussed to a processing unit, and then tied wrist-to-ankle on a gym floor for the next 12 hours. 24 hours after the arrest, all 400 had been released without charges. Among them were said nurses, attorneys, bicyclists, nonprofit officials, and a retired lieutenant colonel.

Predictably, they sued.

The response? If the city of Washington DC could do anything to foul up eDiscovery then that's what they did. No one seemed immune to misconduct: not law enforcement, not the district attorney's office, not IT. Between them all they managed to lose the dozen hard copies and all of the digital copies of the running resumes, which are the records of everything that transpired before, during and after that police action. The 400 or so field arrest forms disappeared. The tapes of the radio runs were edited from 2 hours to 1 (the city reported that the masters were destroyed). And emails that were requested in 2003 and 2004 have just been turned over to the court and plaintiff lawyers now. It's 2009, in case anyone is wondering. Oh, and did I mention that the emails are missing their attachments?

Judge Emmet G. Sullivan was shocked at the level of abuse of the eDiscovery process. So am I. Therefore, fair warning: "wars of attrition and scorched earth litigation" used to be a defensive move. Now it will end up costing you big-time.

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