As fascinatingly reported by Correy Stephenson of the Wisconsin Law Journal, if an eDiscovery expert ever tries his or her hand at a version of Monopoly, then instead of the occasional “Chance” or “Community Chest” card sending players directly to jail without passing GO, the crime will be failing to comply with court-ordered eDiscovery requirements. Just ask Mark Pappas, who is facing two years in prison for incurring the eDiscovery-related wrath of one U.S. District Court Judge Paul Grimm.
Pappas’ crime? Spoliation of evidence; or, to quote Judge Grimm: “the single most egregious example of spoliation that I have encountered in any case that I have handled or in any case described in the legion of spoliation cases I have read in nearly 14 years on the bench.”
Judge Grimm’s recommendation of jail time for Pappas comes after a complex 4-year legal ordeal in which Pappas, who was accused of copyright infringement in 2006, committed a stunning array of spoliation acts related to that matter, including: production delays, large-scale ESI deletion, lack of litigation hold, failure to store an external hard disk, and even the defragmenation of his computer.
Pappas’ defense? “Negligence” – a plea that Judge Grimm swatted away with a frankness that would make Law and Order scriptwriters blush: “[the defendants] set out to delete, destroy, or hide thousands of files containing highly relevant ESI pertaining to [the] plaintiff’s claims. … [T]he spoliating parties lied about their ESI production; obstructed the discovery process; and intentionally destroyed evidence when they were aware of the lawsuit.”
Judge Grimm stopped short of referring the matter to the U.S. Attorney’s Office for criminal contempt proceedings, saying that it would be a further burden to the court’s already-drained resources.
However, drained resources or not, hell hath no fury like a scorned judge, and this one is pretty ticked off. So much so, that he recommended a default judgment on the plaintiff’s primary claim, and ordered the defendants to cover the costs related to investigating their abuses (e.g. retaining ESI vendors and preparing, filing motions, and so on)
Oh yeah, and as mentioned earlier, he also recommended that Mr. Paras spend the next two years in jail for “pervasive and willful violation of serial court orders,” unless he pays the plaintiff’s legal fees and costs.
Now, like all court rulings involving eDiscovery, this is also an object lesson – and an eye opener, according to industry observers.
“Jail time gives lawyers another way to convince their clients of the seriousness of the preservation obligation in discovery, as well as the importance of memorializing their actions throughout the e-discovery process,” noted Robert Brownstone, Law and Technology Director and Co-Chair of the Electronic Information Management group at California’s Fenwick & West.
And it’s not just clients who should be re-educated; it’s a wake up call for attorney’s, too. “The decision is a fantastic educational resource for practitioners,” noted Kelly Kubacki, a staff attorney at Minnesota’s Kroll OnTrack, a computer forensics firm. “Lawyers must stay educated on electronic discovery and this case will help them understand what their duties are.”
And to deepen the learning experience, Judge Grimm (is that not the coolest judge name you’ve ever seen?) has created a chart, which explains the law on spoliation and sanctions for each federal circuit.
“This chart will be useful because lawyers need to know what the standard will be in their jurisdiction whether they are trying to prove spoliation or defend it,” commented Craig Ball, an Austin, Texas, trial lawyer and technologist.
Click here to download Judge Grimm’s 12-page chart, which summarizes the state of law across Circuits.