Contractor At Root Of 'Discovery Debacle'

When you need a contractor, maybe don't hire "an actor who specializes in legalese."

Oh dear. As if we needed more reminders of the potential pitfalls that lie in wait at every stage of the discovery process, there is a tale of sanctions in Missouri so bad a federal judge is calling it a “discovery debacle.”

The case is Fidelity National Title Insurance v. Captiva Lake Investments and according to Missouri Lawyers Media (sub. req.) Fidelity committed the discovery foul. It seems a contractor deleted millions of emails in the course of creating a document retention system.

A contractor trying to start up an email retention system wiped out the emails in September 2011, U.S. District Judge Carol Jackson said in a Jan. 7 sanctions order that outlined a number of other recordkeeping mistakes by the large title insurance company.

All told, as many as 13 million emails were obliterated in 2011 and 2012. Of those, nearly 8 million — all dated before Sept. 13, 2006 — were under legal holds, meaning they should have been kept for litigation or potential litigation.

Though Judge Jackson notes not all of the destroyed email were relevant to the instant litigation, she does grant Captiva’s motion for sanctions (in the form of an adverse inference instruction, costs and attorney fees). Indeed, during a hearing regarding the “piecemeal” discovery she notes,

Some of the stuff that has happened here is making Fidelity look like the bad guy. I’m not saying you are, but that’s how it’s looking.

Yikes. Maybe it doesn’t quite rise to the level of benchslap, but it isn’t good.

The issue came to light in a 2013 hearing, during which Captiva argued that key documents were missing from Fidelity’s production, though they would have been stored electronically and emailed. They argued an e-discovery specialist should be appointed by the court to investigate the discrepancy.

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Wunderlich [a Lewis, Rice & Fingersh attorney representing Captiva] also asked that Fidelity put an e-discovery specialist on the case with more computer expertise than the assistant vice president the title company previously had tapped. Wunderlich said the staffer had nothing in his résumé that indicated he knew anything about computer systems, though he did say in his online résumé that “he’s an actor who specializes in legalese.”

Yup, that’s who was tasked with Fidelity’s document retention — “an actor who specializes in legalese.”

In an era of soaring litigation costs, it pays to get e-discovery done right the first time. Even though condescending Biglaw “real” lawyers may consider discovery beneath them, getting people with experience to handle each stage in the EDRM model is crucial. Otherwise, four years after the fact you could be dealing with sanctions, while the contractor you hired has moved on to a role on the latest Shonda Rhimes joint.


Alex Rich is a T14 grad and Biglaw refugee who has worked as a contract attorney for the last 7 years… and counting. If you have a story about the underbelly of the legal world known as contract work, email Alex at alexrichesq@gmail.com and be sure to follow Alex on Twitter @AlexRichEsq

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