eDiscovery Lessons from SanDisk

In California, buildings are said to be earthquake-ready. In the military, would-be soldiers go through grueling training to be conflict-ready. Global positioning systems prepare anxious drivers for the next highway exit should they make a wrong turn. Surgeons are ready with their machines that go *ping* when complications occur.

So in a nutshell: preparedness is one of those generally accepted good ideas. Like seat belts. And employee bonuses. And milk expiration dates.

And, of course, in law, too.

Lawyers who battle in court want to be prepared for litigation. And one of the best ways they do this is ensure that they’re eDiscovery-ready.

But you knew that already, right? Of course. You don’t go through 400 years of law school (funny, it only seemed like 300) by overlooking the blatantly obvious.

However, as obvious as this all seems, it can be….instructive to keep in mind the consequences of unpreparedness when it comes to eDiscovery.

Harkabi versus SanDisk

The case should be of interest to companies and legal firms because it clearly shows the consequences of a less-than-perfect eDiscovery exercise. (You can read the full story by Daniel Wise here, but be warned, it can make you lose your appetite).

Here are the “highlights”:

  • Harkabi and Elazar filed a lawsuit against SanDisk, claming that the high-tech giant owed them a cool $4 million more than the $10 million they received for their flash drive invention.

  • SanDisk turned over 1.4 million documents to the lawyers for Harkabi and Elazar

  • Harkabi and Elazar asserted that additional emails stored on their former SanDisk-supplied laptops would verify their claim for the additional $4 million.

  • SanDisk’s in-house legal issued a “do not destroy” order, and kept the two laptops Harkabi and Elazar used while they were employed at SanDisk.

  • However, the laptops were handed to other employees after one year

  • SanDisk then said that the hard drives from the 2 laptops were lost.

  • The presiding judge, William H. Pauley, ruled that he would advise the jury to “draw a negative inference from the fact that SanDisk Corp – a company with a market capitalization of $8.7 million had lost the drives from laptop computers…”

  • Judge Pauley further added that SanDisk’s “size and cutting edge technology raises an expectation of competence in maintaining its own electronic records.”

Lesson Learned?

We can’t (and won’t) render a legal opinion on this one way or another. So if you’d like us to fault SanDisk or its former employees…we’ll resist that temptation.

But we can say – regardless of how this plays out – that the courts seem to be taking an increasingly dis-favorable view of companies who “should” have policies in place, and “should” follow certain actions regarding eDiscovery, regardless of whether actual wrongdoing can be proved.

Or in simpler terms, and taking things to a more metaphysical level (why not?), it’s the old adage: to whom more is given, more is expected.

Smart, successful companies (and their employees) are assumed by the courts to do smart, successful things.

And one of those is eDiscovery.

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