*** NOTE – No privileged or proprietary information is contained in this post. ***
My first foray into the realm of e-discovery occurred in early 1997 – when it was still just called “discovery”. I was a Consultant to Sony Pictures Entertainment at the time and Manager of Groupware Services Worldwide, which – unfortunately for me – included responsibility for the company email system. I was not yet an attorney.
(I have a feeling most of you know where this is going…).
In late, 1996, Reebok Int’l filed suit against Tristar Pictures (at the time a subdivision of SPE) for breach of contract due to the handling of a product placement in the movie, “Jerry Maguire“. Reebok’s attorneys issued a subpoena for relevant email correspondence between Tristar representatives who were parties to the negotiations.
We faced a serious problem, which was not an unusual one given the time elapsed between negotiations to make a motion picture and the actual production and release of that picture. The emails were several years old and the Company had done away with the archaic tape backup system used at the time.
A consultant’s job is to find a reasonable method to deliver what a client requests. As such, I tasked one of our best number-crunchers to figure out what it would realistically take to re-create the prior backup system from scratch, then catalog all of the old tapes to
even give us a starting point as to what would be required for review and production. Keep in mind that this was a much more difficult feat to accomplish in 1997 than it is today. The results were striking. The estimated cost to comply with the subpoena was approximately $250,000!
Obviously, management wasn’t too keen on the idea of spending that sum of money, and thus began a motion by Tristar’s representatives to quash the subpoena due to the high cost, or failing that, shift the burden – or at least a large portion of it – onto the Plaintiff. Being on the tech side of things – and with a stack of responsibilities on my desk – I moved on to the next “crisis” and have no knowledge as to what specifically transpired after that. Eventually, the word came down from on high; “you don’t have to worry about producing the data”. Whew!
I wanted to relay this story because it mirrors exactly how an e-discovery request might fall upon an IT department today. It also raises several of the most important issues:
Are we able to comply with the request? How much time/resources will this take away from our other pressing issues? How much will this cost? Who will bear the cost?
Luckily, I had at my disposal the qualified brainpower to comply – and had we been asked to proceed, we could have done so. But it would also have meant taking one of my best minds away from what he was doing, leaving me short-handed with the prospect of making do without him or hiring a temporary replacement and bringing him/her “up to speed”.
The question is, what would happen if you received the request?