From the Blog

eDiscovery Risks Associated with Inadequate Supervision of Employees

July 24, 2017 eDiscovery

In Rodman v. Safeway Inc., No. 11-CV-03003-JST, 2016 WL 5791210 (N.D. Cal. Oct. 4, 2016), Safeway was sanctioned for failure to conduct a reasonable and timely search for documents responsive to discovery requests. Safeway produced ten relevant documents approximately a week before the trial was scheduled to begin. The documents were found on a “legacy” computer drive by Safeway’s Director of Marketing, Steve Guthrie, who was reviewing the computer drive in anticipation of trial. Guthrie did not initially search and review the contents of the individual documents on the computer drive but instead searched across file names within the drive.

The plaintiffs moved for sanctions under the Federal Rule of Civil Procedure 26(g), which “requires a signing attorney to certify that a reasonable inquiry has been made with respect to the factual and legal basis for any discovery request or response.” Safeway insisted that it made a reasonable inquiry into the factual basis of its discovery responses by conducting custodian interviews, searching for electronic sources that may have contained responsive data, and searching the legacy drive at issue. Attorneys for Reed Smith and Sheppard Mullin and several Safeway employees submitted affidavits describing the search conducted by Safeway.

Although there was “no indication of bad faith” by Safeway or its counsel, the court concluded that Safeway’s search was unreasonable for three reasons. First, the court found that there was “no indication that Safeway’s counsel guided or monitored” the search of the legacy drive. Counsel “relied on Mr. Gutherie’s determination that no relevant documents were found on the legacy drive.” Further, there was no evidence that counsel “questioned the thoroughness” of the client’s search. The court concluded that the “lack of guidance and oversight supports a finding of unreasonableness.”

Second, the court found no evidence that Gutherie had experience conducting searches of large repositories or that in-house counsel, outside counsel, or IT personnel assisted Gutherie with the searches. The documents in question would have been identified, the court concluded, if adequate assistance had been provided to Gutherie. Finally, the court determined that the initial search was “objectively unreasonable” because “[a]nyone conducting an adequate search” would have identified the relevant documents at issue.

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The court also noted that under Rule 26 and the Advisory Committee Notes, 1983 Amendment, Subdivision (g), “[t]he reasonableness of the inquiry is measured by an objective standard; there is no required showing of bad faith.”  Nat’l Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 555 (N.D. Cal. 1987); see Advisory Committee Notes, 1983 Amendment (“The duty to make a ‘reasonable inquiry’ is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances.  It is an objective standard similar to the one imposed by Rule 11.”).