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Don't be that guy whose case gets tossed for waiting on his vendor

November 16, 2016  |  4 min read

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Federal judge scolds plaintiff and counsel for "lame excuse," "inflicting nightmare" upon opposing party

Some lessons are learned the hard way. One of these lessons: If you're betting on an eDiscovery vendor to turn around a 10,000 email database over a weekend... you lose.

At least, that was the hand dealt to Erwin Washington, a plaintiff in a case against United Airlines alleging discriminatory promotion practices among pilots. And now he and his attorneys are faced with two bad alternatives: permanent dismissal of their claims or monetary sanctions equal to half of the costs incurred by their discovery delays. This is what happens when you try to engage a vendor on a Saturday. Good luck.

To be fair, Washington and his attorneys were given roughly three months to produce documents before things got this bad. But still, staring down the barrel of a 48-hour deadline, party and counsel turned to a discovery vendor to process about 10,000 pages of email... and proceeded to get access to review those email four days later.

To save you the math, that's two days late.

Here's how counsel described their efforts to (totally livid) Judge Vince Chhabria:

"On Monday, September 26... I uploaded the email archive to our discovery vendor. With archives of this nature, the discovery vendor unzips the archive and provides an online review and production platform.... [W]e are dealing with a universe of over 10,000 emails. The discovery vendor runs searches and separates out communications to and from attorneys and the related plaintiffs, and a privilege log is created of those emails withheld. The remainder are then reviewed by counsel and produced. As of the time of writing this status report (more than 24 hours later), the discovery vendor has not yet completed the processing required for counsel to proceed to the step of review prior to production. It will then take several days to complete review of these emails before producing them."

Let's pause to acknowledge a couple things. First, arrrrghhgaublawww. Second, under no circumstances should it take more than 24 hours to process 10,000 emails. That's like 3 GBs of data. Third, counsel received those documents from Washington on Saturday, September 24, and didn't upload them until the following Monday -- presumably because there was no one around to help out over the weekend. Fourth, the way this process is described, you'd think the vendor was actually physically unzipping the email archive - like it was sent on a hard drive wrapped in a hoodie. And, who knows, maybe that was the case.

Let's continue...

"(Counsel speaking) Although this sounds like an easy task, for the court's understanding... probably more than half of these emails will constitute emails between and among the Plaintiff group and their counsel. This means that close to 1,000 emails will be subject to a privilege claim. This cannot reasonably be done by hand but is done by a discovery firm's electronic parsing of the emails by senders and recipients, with reports generated, and then privileged emails pinpointed by the presence of an attorney involved with the email.

Judge Chhabria responded:


He further clarified:

In particular, the assertion by Washington's counsel that he could not have provided these emails on time, because that many emails cannot be reviewed "by hand," is preposterous. 1,700 emails can be reviewed "by hand," and could have been reviewed on time to make the production in compliance with the Court's deadline.... While the Court is mindful that law firms vary in size and resources, and that e-discovery vendors can provide helpful assistance, none of these considerations excuses counsel's obligation to provide competent representation to his clients.

Did you catch that? The judge said it would've been easier and faster to review those emails by hand than it was to work with the vendor. He then concluded that counsel acted in bad faith, based not on the fact they were unable for three months to get their client to comply with discovery demands, but -- and here's the kicker --  because once they did secure emails from the client, they were unable to review them in a matter of a few days.

Pull quote:

"Washington didn't provide them to his counsel until September 23, only to see his counsel provide lame excuses for his failure to turn them over to United by September 26."

Now, to be sure, there are solid vendors out there, many of which can presumably plow through a few thousand emails in a pinch (if they're willing to take a case that small), and not hang you out to dry in front of a livid judge. But that's beside the point. The real travesty here is that, with the emergence of affordable and widely available cloud-based Legal Intelligence solutions, the parties turned to a vendor in the first place. With modern tools, unzipping archives and flagging privileged material is literally as easy as drag and drop. If you know how to use the internet, and your pointer finger works, you can do in five seconds what it took the parties in this case about four days to accomplish. Case in point, from a real user:

This isn't a plug for cloud, it's a plug for common sense. When you use software that defensibly automates the time and labor-intensive aspects of discovery, you're not risking missed deadlines, peeved judges, or case-ending sanctions. And, more to the point, you're getting to the issues that matters faster -- not dealing with this nonsense.

The case is Erwin Washington v. United Air Lines, et al. (No. 15-cv-00471-VC). It is available here.