The first installment in opposing counsel’s electronic document production of 36,000 pages contained a noticeable absence: there were very few “internal” emails pertaining to our client, the Plaintiff. This absence struck us as odd since our client was the Defendant’s largest client.
Our first reaction was to send opposing counsel a letter expressing our concern over this absence. As we were armed with only speculation, opposing counsel employed their usual discovery tactics. They sent us a letter in response stating their official position—the problem was not in their document production, but in our legal theory. In other words, they denied any withholding of documents.
Instead of taking their word for it, we had already started our own document review of their materials. In each document was a hidden field (ie, “meta data”) that specified documents as ‘confidential,’ ‘attorneys eyes only,’ and ‘unclassified.’ That much we knew and expected. But when we dug deeper, we found a fourth category: “privileged!” It turns out that they accidentally sent us documents that they had intended to keep from us. On top of that, opposing counsel’s notes for each electronic document were included (identifying which documents were “hot”).
We immediately notified opposing counsel of what appeared to us to be a glaring mistake. Understandably, they wanted their documents back. The problem was that we had already printed out all of the documents not tagged “Privileged” and began our review. If they were to redo their production by applying new Bates numbers (something like a serial number for electronic documents), our entire review would be wasted.
So, we agreed on a solution: all documents tagged “Privileged” would be removed and replaced with blank Bates numbered pages, and the rest of their replacement production would remain identical. Opposing counsel even suggested solidifying this solution by filing a Rule 11 Agreement to that effect with the court. As part of the agreement, we were entitled to retain the original electronic production until the replacement production arrived so that we could verify that the productions were, in fact, identical. But how do you perform a verification check on 36,000 pages?
The Critical Electronic Discovery Solution
Although we knew a replacement production could be made quickly, we had reason not to trust the other side or their electronic discovery abilities. They did produce all of their client’s privileged information to us, after all. So we put together various computer programs to create our own system to perform an automated comparison of each electronic image and piece of metadata between the two productions. It took us about three hours to create this system, and only five minutes to run.
The result: we instantly identified several documents in the replacement production with minor alterations, and one document with a material alteration. One of the few internal emails discussing our client originally produced by the other side appeared in the replacement production redacted, concealing what we considered to be highly probative evidence. In laymen’s terms: they were tampering with the evidence—clearly a big no-no. Plus, now we had the evidence we needed to prove the other side was withholding evidence from us.
Opposing counsel learned their lesson and had no choice but play by the rules and submit ALL the information to us—including the damaging documents. Subsequent productions contained loads of internal emails discussing our client, and we obtained the critical evidence we needed to establish our legal theories.
We would not have been able to find this materially altered email without critical electronic discovery. If we had conducted a manual, page-by-page comparison, it would have taken us about 180 attorney hours and even then there would be no guarantee of finding the altered email.
We learned our lesson too: never trust the electronic discovery of your adversary at face value. Always verify that things are as they should be, which is the point of critical electronic discovery and the foundation of our practice.