Blog Post submitted by Brandon D. Hollinder (Falcon Discovery)
With discovery seemingly complete and in the books, the situation takes an unexpected turn when Defendant located new data in In re Delta/AirTran Baggage Fee Antitrust Litigation. The court sanctioned defendant, Delta Air Lines, for locating and producing 60,000 pages of responsive material after the close of discovery. Defendant discovered that they had inadvertently failed to search several hard drives and failed to locate several backup tapes prior to the close of discovery despite claiming nearly 20 times that they had produced all responsive material. Defendant’s counsel asserted they relied on assurances given by their IT department, and although the court did not find defendant’s omission to be intentional, it nevertheless found that defendant “did not conduct a reasonable inquiry” and levied monetary sanctions against defendant. However, given that defendant did cooperate once the error was reported, the court refrained from precluding defendant’s use of the material.
Judge Timothy C. Batten identified several key errors in how defendant dispatched its discovery obligations, including:
- Defendant’s counsel did not confirm with IT that each hard drive that was supposed to be loaded for searching actually had been; counsel did e-mail IT with a list of custodian hard drives that should have been loaded, but IT “did not respond with confirmation that each listed person’s drive was on the system[.]”
- Despite intense questioning and discussion of backup tapes with the court, counsel did not personally search the location the backup tapes were ultimately discovered; instead, counsel relied on IT’s statements regarding the contents of the location, and the absence of backup tapes in that location.
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Source: eDiscovery News
By: Brandon D. Hollinder