Challenge

With the discovery cut-off just around the corner and a trial date looming, a client has serious concerns about unresolved electronic discovery issues. Five years into the litigation, this nationwide corporation is ready to go on the electronic discovery offensive; however, it has neither the human resources nor the experience to accomplish its objective of creating a cohesive strategy for attacking the opposition’s vulnerabilities. Preparations must also be made for an anticipated motion to compel additional documents and a request for Sanctions for Failure to Preserve ESI.

Solution

Daegis® consultants were engaged to work in tandem with senior trial counsel to prioritize core issues, develop a strategy to address those issues, and provide support to the legal team to execute the strategy. First, Daegis assumed responsibility for the initial review and analysis of a 400,000-plus backup tape inventory with two goals in mind: to target tapes for restoration and to glean strategic information to be used in depositions.

Our analysis revealed that the opposition had not searched network drives for potentially relevant evidence. Daegis consultants also identified backup tape sets that could be targeted for restoration and provided an outline of issues to raise in the 30(b)(6) deposition regarding the inventory. Based largely on Daegis’ strategic advice that the opposition had failed to search network file shares, our client filed a motion to compel network data, seeking Sanctions for Failure to Preserve ESI.

Having completed the initial task of review and analysis of the backup tape inventory, Daegis was asked to assist senior counsel in preparing for the 30(b)(6) deposition of the person most knowledgeable about a wide variety of subjects, including backup tape inventory, IT infrastructure, policies and procedures, record retention, and data preservation and collection. Due to unusual circumstances, electronic discovery issues in this $90 million litigation were being addressed late in the discovery lifecycle, making it critically important to maximize the strategic utility of the 30(b)(6) deposition. The 30(b)(6) deposition was the last opportunity to obtain key information regarding data management habits and an explanation for why certain data appeared to be missing. Our client obtained significantly more intelligence from the deposition with our assistance. Testimony from the deposition was foundational in the Motion to Compel described above.

While preparing to take the 30(b)(6) deposition, our client also had to maximize their opportunity to depose the remaining percipient witnesses. Daegis developed an outline focused on electronic discovery issues regarding data management habits and data preservation that was used advantageously by our client in the remaining depositions.

Finally, Daegis consultants provided sworn affidavits to the court in preparing motions in limine challenging the authenticity and admissibility of key documents. Daegis staff remained on call to address these issues as trial proceeded.

Result

What appeared to be an insurmountable task—a review of a 400,000+ backup tape inventory—not only accomplished was in a short time frame but also revealed a major flaw in the opposition’s production. Intelligence gleaned from the review of the inventory was used strategically during the 30(b)(6) deposition providing the client with some much-needed leverage to achieve its goal of challenging the opposition’s claims of good faith production. ESI issues were appropriately addressed in the remaining depositions allowing our client to file fully supported motions. Our client went to trial having aggressively pursued electronic discovery issues of critical importance in this $90 million dollar litigation.