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Death Instructions Decree Brings Almost Certain Guarantee of Litigation Loss

Before entering healthcare technology, I spent numerous years in government and as a private consultant helping both public and private attorneys with technology purchasing decisions.  Although I never expected my attorney clients to be well versed in technology, the explosion of digital data, changing state eDiscovery laws, and the Federal Rules of Civil Procedure (FRCP) have markedly changed attorneys’ view of technology.  Now when I talk to attorneys there is a measurable difference in how they perceive technology and how it can affect litigation. 

Recently, I had a passing conversation with an attorney about FRCP and as we were talking, he kept bringing up areas that concerned him. So I asked him, “What is your biggest eDiscovery concern?” Without hesitation he replied, “Having a judge issue ‘Death Instructions’.”

As he expanded on the dreaded “Death Instruction” decree, it became clear why this was such an area of concern. If a judge issues the “Death Instructions” to a jury, you most likely have lost your case and a large judgment against your company is almost a guarantee. So as companies continue to develop an eDiscovery strategy, it is important to understand what they need to do to avoid the dreaded “Death Instructions” decree.

The “Death Instructions” decree is commonly referred to as “negative inference“; or simply a court judge telling a jury that they can negatively infer that your failure to act in good faith by providing electronic evidence during an eDiscovery can be held against you.  In other words, a jury can assume you are hiding something damaging to the case and assume the worst.  There are numerous examples like the following;

  • Doe v. Norwalk Community College, 2007 U.S. Dist. LEXIS 51084 (D. Conn. Jul. 16, 2007). After Defendant was informed that a sexual assault claim might be filed, they failed to halt the destruction of relevant electronic information. The court found that Defendant was not entitled to the Fed. R. Civ. P. 37(f) good faith exception to sanctions for routine destruction of data and held that Plaintiff was entitled to an adverse inference sanction regarding such data.
  • Hawaiian Airlines, Inc. v. Mesa Air Group, Inc. (In re Hawaiian Airlines, Inc., Debtor), 2007 Bankr. LEXIS 3679 (Bankr. D. Haw. Oct. 30, 2007). The airline’s Executive Vice President and CFO used a wiping program on his company computers after being informed of a litigation hold. As the company had not made copies of the hard drives to preserve relevant data prior to these computer systems being wiped, the court issued adverse inference sanctions against them. 

Where this type of judgment has been levied, and avoiding this situation takes an understanding of how to avoid spoliation.  In the case of Hawaiian Airlines v. Mesa Air Group, the spoilation and negative inference led to an $80 million dollar judgment.

Spoilation is the intentional destruction of a document or an alteration of it that destroys its value as evidence.  This could also be an act that a Judge interprets as a willful disobedience to a court order, such as not preserving digital evidence that was demanded in a discovery order, or failure to preserve digital evidence that reasonably should have been considered relevant to the case.  In either scenario, failure to provide evidence that is material to a case is a damning and severe sanctions are a certainty. 

With email being central to business processes and often the preferred means of communication for both internal as well as external correspondence, it stands to reason that protecting these communications is central to any eDiscovery strategy.  The difficulty is how to know where important email communications are located within a corporate network, how to retrieve email that is only relevant to the case, preserving an unaltered copy of a conversation, and tracking who sent and received the email.  These are all areas that can be problematic in providing a clear and accurate answer to an eDiscovery request. 

Estorian LookingGlass provides answers to problems faced by corporations in establishing an eDiscovery strategy as it pertains to email communications by:

  • Centralizing email by eliminating the need for distributed PST stored mail.  Companies can confidently search all email for its case relevance without worrying about missing something material to a case due to the inability of knowing where an email resides on the network.
  • LookingGlass facilitates an accelerated review process by reducing email down to only relevant email.  After email is indexed into a structured format, you have the ability to reduce costs by only sending relevant information to external providers, or outside counsel.
  • Integrity and authenticity of email is kept in tact by preservation of header and metadata.  This ensures accuracy of the communication and provides the ability of being able to track the emails recipients.

Any time a case goes before a jury there is a risk the results will not favor your side.  But not taking the proper steps to preserve digital information can make that risk a certainty.  With judges having a wide discretion in leveling large penalties for spoilation of evidence, it makes sense that avoiding this situation would be a top priority for attorneys.  Products such as Estorian’s LookingGlass provide companies the ability to properly answer eDiscovery requests and avoid a judge issuing the sinister sounding death instructions. 


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