E-Discovery Firm Scolded Over E-Discovery

E-discovery firm Guidance Software is in the news for annoying an arbitrator in a wrongful termination case by not producing email messages

Howard Marks

February 24, 2009

2 Min Read
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11:50 AM -- It should be no surprise to any reader of Byte and Switch that any litigation today will require the various parties to produce email messages as part of the discovery process. In fact, E-discovery itself is a multibillion-dollar market, and it seemed to me that at least one third of the booths at LegalTech were touting some sort of E-discovery product or service.

It's therefore somewhat ironic that E-discovery firm Guidance Software is in the news for annoying an arbitrator in a wrongful termination case by not producing email messages. After marketing director Cassondra Todd got a negative performance review and hired an attorney to challenge it, she was laid off and brought suit for wrongful termination.

Guidance's initial response to discovery requests revealed little. But Todd's former manager -- and gee, a competitor now -- had printed relevant email messages that Guidance hadn't produced. After Guidance asserted that searching backup tapes and deleted files would have been too much work, work in fact they would have charged a client $100,000 for, the arbitrator in the case ordered the search anyway and Todd was awarded $300,000.

The full AP story is available here.

This isn't the first time Guidance has been in the news: A 2005 hacking incident exposed 3,000 or more customer credit card numbers.So what can we learn from Guidances experience:

  1. The cobbler's children have no shoes.

  2. Backups make really bad archives.

  3. When you're before a judge or arbitrator, you have to live up to the image you present. If Guidance Software wasn't in the E-discovery business it may not have annoyed the arbitrator as much when it failed to be really good at E-discovery.

Guidance's response to the AP article, in addition to the usual legal mumbo jumbo about how they ultimately produced everything and searching backup tapes wasn't required at first under the federal rules, says:

  • It bears mentioning that Guidance Software does not develop or sell solutions that target back-up tapes. We sell solutions that enable parties to conduct efficient and targeted discovery.

I wonder how you can perform efficient discovery without searching backup tapes, and suggest Guidance make a deal with Index Engines.

— Howard Marks is chief scientist at Networks Are Our Lives Inc., a Hoboken, N.J.-based consultancy where he's been beating storage network systems into submission and writing about it in computer magazines since 1987. He currently writes for InformationWeek, which is published by the same company as Byte and Switch.

About the Author(s)

Howard Marks

Network Computing Blogger

Howard Marks</strong>&nbsp;is founder and chief scientist at Deepstorage LLC, a storage consultancy and independent test lab based in Santa Fe, N.M. and concentrating on storage and data center networking. In more than 25 years of consulting, Marks has designed and implemented storage systems, networks, management systems and Internet strategies at organizations including American Express, J.P. Morgan, Borden Foods, U.S. Tobacco, BBDO Worldwide, Foxwoods Resort Casino and the State University of New York at Purchase. The testing at DeepStorage Labs is informed by that real world experience.</p><p>He has been a frequent contributor to <em>Network Computing</em>&nbsp;and&nbsp;<em>InformationWeek</em>&nbsp;since 1999 and a speaker at industry conferences including Comnet, PC Expo, Interop and Microsoft's TechEd since 1990. He is the author of&nbsp;<em>Networking Windows</em>&nbsp;and co-author of&nbsp;<em>Windows NT Unleashed</em>&nbsp;(Sams).</p><p>He is co-host, with Ray Lucchesi of the monthly Greybeards on Storage podcast where the voices of experience discuss the latest issues in the storage world with industry leaders.&nbsp; You can find the podcast at: http://www.deepstorage.net/NEW/GBoS

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