Jeane A. Thomas

We all know that discovery is never perfect, particularly when it involves the collection, review and production of large volumes of electronically stored information. But when is discovery good enough? And what standards should govern when one party challenges another party’s production as deficient?

These are extremely difficult issues for courts to resolve and, not surprising, courts have not been entirely uniform in their approach. However, that’s only the first step because when a court finds that discovery has been so deficient that sanctions are warranted, it must then determine what sanctions to impose and whether to impose them on the party, inside counsel, outside counsel, or some combination thereof.

Many of us remember the well-publicized sanctions debacle in the Qualcomm v. Broadcom litigation in the S.D. California, which involved protracted argument between Qualcomm and its outside counsel over who was responsible for the failure to locate and produce certain key documents. See, e.g., Qualcomm Inc. v. Broadcom Corp., 2010 WL 1336937 (S.D. Cal. 2010). Similar issues are playing out again in a case currently on appeal to the Eleventh Circuit, in which the district court imposed sanctions on the defendant and its retained outside firm relating to deficiencies in their document production. Coquina Investments v. Rothstein and TD Bank, N.A., No. 10-60786-Civ (S.D. Fla. Aug. 3, 2012). While stopping short of sanctioning the defendant’s inside counsel, the court was critical of their performance – so much so that the Association of Corporate Counsel has weighed in with an amicus brief in the appeal arguing that the district court’s sanctions order creates impossibly high standards for in-house counsel.

These are difficult issues that may impact the relationship and roles of inside and outside counsel. Further, the perceived fear of sanctions, which can be outcome determinative in the litigation itself, may affect decisions made about the scope of preservation, costs required to conduct e-discovery, and even settlement.

I look forward to exploring these topics with a panel of experts this Thursday, May 23, 2013, during a Bloomberg BNA webinar on “Sanctioning Inside Counsel, Retained Counsel and Parties.”  I’ll be joined by: U.S. Magistrate Judge Craig B. Shaffer (D. Colo.), Ronald J. Hedges (former U.S. Magistrate Judge (D.N.J.)), and Amar D. Sarwal, VP/Chief Legal Strategist, Association of Corporate Counsel.

I’m sure we won’t have all the answers but it should be a lively discussion.