DCIG has consistently stressed the need for good eDiscovery processes for electronically stored information (ESI). A steady stream of sanctions surrounding poor eDiscovery strategies is a consistent reminder that a lack of planning can be damaging to your case. A recent case, Ferron v. EchoStar Satellite, LLC., in one such reminder that images and links in emails can be subject to eDiscovery and that the failure to preserve them could be costly.
Although this case did not end in sanctions for EchoStar, it showed the need for email controls and archive technology that preserves email in its native form. Central to this case was an allegation of sending emails which conveyed a commercial advertisement and displayed the name and/or logo of Dish Network. This was alleged to be in violation of the Ohio Consumer Sales Practice Act.
The Plaintiff sought sanctions for failure to preserve website links and images contained in messages. Paper copies of the messages were given in response to the subpoena due to the fact the Plaintiff did not establish the Defendants’ duty to preserve the images. The emails were provided on a CD-ROM and it was argued that the images were fully visible at the time of production. The Plaintiff contended that the unavailable images were the only evidence to establish that the contents of the emails violated the law.
This case seemed mismanaged in a lot of ways as it pertains to preservation and production of ESI, and rightfully it would appear sanctions were not granted. But, producing emails on a CD, not presenting metadata, and not preserving images is definitely not the norm and is a rare exception in today’s legal environment.
Companies should take the necessary steps to preserve email data, preserve the contents of the email and ensure that metadata is intact. Without the ability to show a solid history of email management, the risk of costly sanctions rises dramatically.
Technology such as Estorian LookingGlass provide the ability to archive, index, search, and provide a complete trail of e-mail messages necessary to answer an eDiscovery request. Some of its capabilities include:
- Email is archived with the images in tact. LookingGlass provides a unique way of searching and displaying images. When the image you are looking for is identified, a simple mouse click of the image shows the complete email attached to the image.
- Search capabilities provide a complete email trail. Once the email is located that is tied to an image LookingGlass provides the ability to see all persons who received, sent, or deleted the email.
Metadata is preserved. All metadata associated with the email is preserved, archived and available for display and/or presentation to meet eDiscovery mandates.
LookingGlass provides a powerful way for companies to sort through mountains of email and provide the ability to capture and search images within email. This is critical as the above case demonstrated.
Companies should not count on poorly framed eDiscovery requests to keep sanction possibilities at bay. Instead proactive planning, solid eDiscovery processes, and technology such as LookingGlass should be used to meet the complex circumstances surrounding today’s state and federal laws such as the Federal Rules of Civil Procedure (FRCP) and California’s Electronic Discovery Act.
As this case shows, email continues to be a huge risk and a consistent pain point for eDiscovery and without the ability to archive and present images in email it will no doubt lead to sanctions. So while this Defendant was fortunate it that it did not meet with any court sanctions, companies should not expect the same fortunes in their eDiscovery strategies as their luck will eventually run out.