Last month, a district court in West Virginia issued an eDiscovery opinion in the matter of Clay v. Consol Pa. Coal Co. Ordinarily at this point in our blog posts, we explain some of the facts, and then give a procedural background that brings us up to date. Not this time. Here’s how Magistrate Judge Seibert’s opinion begins:

To put it lightly, there has been a severe shortcoming by Defendants in this action during the discovery process. Not only have Defendants’ resisted providing required information in initial disclosures and resisted previous discovery attempts by Plaintiff on an unfounded “we are not his employer” objection to discovery, but it has now come to light that Defendant did not even engage in a search for relevant electronically stored information (ESI) until April of this year—nearly ten months after this action was filed, and nearly two years after the EEOC investigation. 

Again, those are the opening sentences of the opinion! You know things will not go well for the defendants after that introduction. We go on to learn that the ESI that defendants have failed to produce thus far relates to plaintiff’s employment, his termination, and his specific allegations of racism. In other words, the evidence being sought and not produced is entirely relevant “in an employment discrimination case, alleging mistreatment based upon race”. (Emphasis in original). It turns out that a litigation hold was issued almost two years before defendant started actually searching for the requested ESI.

The opinion continues:

The logical question is: why was this not done? The only proffer by Defendants is that there was a minor miscommunication between counsel and a human resource (HR) manager, who they allege was responsible for collecting materials responsive to Plaintiff’s discovery requests. This miscommunication, as stated at the hearing on Plaintiff’s motion for sanctions, is that counsel did not specifically tell the HR manager to gather emails. Rather, counsel operated under the assumption that emails would be searched in his directive to find responsive materials… [There was also at least] one instance of Defendants allowing a deposition to take place where there were, what the Court will classify as highly relevant documents, without giving those documents to Plaintiff to use at the deposition.

So, going in to this hearing, plaintiff sought sanctions, the most severe of which was a default judgment. The court found that this “is not the flagrant case where this harshest sanction should be imposed” as there was insufficient evidence that defendants acted in ”bad faith and callous disregard for the authority of the district court and the Rules.” Without bad faith, “judgment by default is not appropriate.” Additionally, the court found that the prejudice suffered by the plaintiff was not so horrendous as to justify a default judgment.

Plaintiff was granted, however, another of its sought-after remedies: the court ordered that six depositions be retaken, those where defendants had not provided the requested discovery the first time around:

The Court finds that an appropriate sanction for this conduct is, first and foremost, making all of these witnesses available for a second deposition. Second, Defendants shall pay all reasonable expenses for these new depositions, including attorneys’ fees and five hours of preparation time per attorney. Further, Defendants shall pay all reasonable expenses, including attorneys’ fees, for the prior depositions, which they impeded, delayed, and frustrated by allowing them to occur without turning over relevant discovery for use at the depositions. (Emphasis added)

Though plaintiff was also granted reasonable expenses and attorneys’ fees, it still reads as if defendants dodged a bullet here. The opinion makes their actions sound egregious (taking almost two years to respond to a litigation hold!), but then the sanctions aren’t too severe, or at least, aren’t as severe as plaintiff would have liked. The message remains clear, though – eDiscovery is serious business, and failure to pay it proper attention can have harmful consequences.