Strange but True: Counsel and IT Should Actually Talk

In Kay Beer vs. Energy Brands, plaintiff Kay Beer claimed a breach of an oral distribution agreement with Defendant Energy Brands. Kay Beer believed it was the sole distributor of an Energy Brands product. Energy Brands claimed this was not the agreement when it awarded distribution to Cadbury, whose participation was eventually dismissed.

The eDiscovery issue at hand was Kay Beer's motion to compel a review of five DVDs containing 13 GBs of data and close to 40,000 documents -- about 650,000 to 975,000 pages. These DVDs contained searched ESI over a period of 5 years that contain search terms containing the word "Kay." Kay Beer wanted to view the entire contents of the DVDs in "searchable and useable format" and with the metadata intact. Defendant opposed the motion saying that the DVDs contain privileged information that Kay Beer may not view, since they contained the stored result of a general search. They also pointed out that the case was almost over with the court's partial decision in their favor and that reviewing the DVDs for sensitive information and a new production was unduly burdensome.

Part of Kay Beer's insistence was likely due to an earlier mistake on the part of Energy Brands. When the two parties did their original Rule 26(f) Joint Report and Discovery Plan they agreed that electronic discovery would not be a significant feature of the case. Sadly this turned out to be untrue.

As the matter continued, Energy Brands claimed that they had searched email archives and there was no data regarding Kay Beer. Kay Beer loudly doubted that, so the parties met again over Kay Beer's request for email. Energy Brands counsel insisted that it did not have any emails related to Kay Beer and that all discovered data had already been produced. Three days later counsel was apparently disabused of this notion and defendant admitted that they did have potentially relevant email dating back for a good 5 years. Ah.

Finger pointing ensued. Energy Brand's IT pro said that he ran a search for "Kay" terms on email in early 2007 and that he had copied results onto a DVD that he gave to company counsel in January or February. Counsel said that was wrong and that IT hadn't come up with the DVD until May of that year. Who was mistaken? Or who was lying?Whatever the truth was, Energy Brands counsel issued orders to search for and preserve emails related to plaintiff. Beginning with an internal search and ending with a third-party vendor to de-dup results, the grand total was the 5 DVDs encompassing a 6-year span of emails related to Kay Beer. This was a far cry from Energy Brand's original assertion that it had few emails relating to Kay Beer.

Understandably Kay Beer made a motion to compel DVD production so they could review the emails. The judge however ruled that since only a single claim remained - he had already ruled in favor of Energy Brands on the rest - an expensive eDiscovery review was not proportional to the remaining claim.

The moral of the story? Energy Brand dodged a bullet. The company's counsel and their IT department were apparently operating at cross purposes and the result could have been devastating for Energy Brands.

Don't depend on finding a judge who has already made a majority of rulings in your favor and then figure out that you didn't do proper eDiscovery. Not a good plan at all. It could have gone far differently then it did for Energy Brands.

Make sure that counsel and IT talk to each other early on. This is a sea change in the way that corporate legal departments traditionally approached eDiscovery, but it must be done.