• 06/26/2009
    10:16 PM
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Strange but True: Counsel and IT Should Actually Talk

Energy Brands' counsel and IT department communicated poorly and the results could have been devastating. They dodged the bullet but will you?
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.
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