Case Law: Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc.
Court Grants Motion to Compel Citing Failure to Identify Information Not Reasonably Accessible
Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 2011 WL 1125493 (W.D.N.Y. Mar. 21, 2011). In this business litigation, the plaintiff sought disclosure of internal e-mails relating to its breach of contract claim. Opposing the motion, the defendant argued the request was untimely and that the information sought was not relevant, responsive or readily accessible. Noting the duty to supplement production continues even after the discovery period closes, the court found the requested e-mails were relevant and responsive to the plaintiff’s initial document request. Despite the defendant argument that producing the e-mails would require searching Exchange databases housed on an external 4 terabyte storage array at a cost of $13,000, the court asserted that the defendant had a duty to identify sources of information that were not reasonably accessible in its discovery response and rejected its belated arguments regarding burden. Accordingly, the court determined the defendant’s initial production was incomplete and granted the motion to compel.
This case demonstrates the importance of being prepared for the Rule 26(f) meet and confer conference in order to address important ediscovery issues fully and accurately. It is important to engage in these early discussions as well-informed, prepared counsel may find itself in an elevated bargaining position capable of dictating advantageous terms. In the conference, counsel should make efforts to understand the opposing party’s technical landscape, clarify the scope of document requests, resolve any production format disagreements and pre-empt the negative impact of inadvertent production of privileged documents by entering into a clawback agreement. Other ediscovery topics that counsel should discuss include the preservation of evidence, testifying experts, cost allocation and other anticipated evidentiary disputes.
In order to be prepared for this conference, counsel should also understand their client’s electronic information and can achieve this through collaborating with IT personnel and in-house counsel (or the organization’s ediscovery team). A data map, which is essentially an outline of a company’s information systems and processes, is also an incredibly helpful resource in identifying data sources and making determinations regarding accessibility of data – something that was amiss in the current case. Use the data map to strengthen pre-discoverability inaccessibility arguments by providing credible evidence of undue burden and cost. Other technology, such as early data assessment (EDA), can also be helpful in meet and confer preparations. EDA will help you determine appropriate search terms allowing parties to collaborate on this important discussion point. The reporting functions within this technology can also help document the process used to determine search terms and validate the quality of those terms for both hits and non-hits.
Finally, it is important for counsel to discuss the use of advanced technology at this conference and reach a documented agreement regarding whether it is acceptable to use such things as intelligent review technology. Although not discussed in case law yet, reaching an agreement regarding the use of this technology at the Rule 26(f) conference will greatly bolster defensibility. Be prepared to explain to opposing counsel what the technology is and how you plan to use it – a process that may be aided by enlisting the help of an expert .