December 13, 2021
This Case Involved More Than One Disaster
As we all know, the devil is in the details. Managing eDiscovery proves this adage almost daily. If you don’t pay careful attention, that devil will most certainly come back to haunt you. This was most recently evidenced in a recent case law ruling in which missing the important detail of ensuring that the most important sources of data were located and preserved immediately may end up eliciting a high cost.
In re Gold King Mine Release in San Juan Cty., Col., on Aug. 5, 2015
This case (covered by eDiscovery Today here) involved the inadvertent release of three million gallons of wastewater from the Gold King Mine by an Environmental Protection Agency (EPA)-led contractor crew. This disaster polluted the Animas River Watershed, spreading toxic waste into rivers in Colorado, New Mexico, Utah, and Navajo Nation lands.
Although the EPA assumed responsibility for the incident, it has refused to pay damages, citing sovereign immunity. And as expected, lawsuits were soon filed to seek compensation for the disaster. The EPA, understanding the trigger for issuing a legal hold, did so six days after the incident on a vast number of custodians and data sources. Unfortunately, they failed to prioritize the custodians and data sources most valuable to the matter, ignoring the crucial details of proper preservation and collection of the information most important to the case. It came back to haunt them six years later, when the Court ruled on the Sovereign Plaintiffs’ [the Navajo Nation and the State of New Mexico] Motion for Sanctions.
Assertions in the Motion for Sanctions
Movants asserted that the Federal Parties (including the EPA) spoliated ESI from two On Scene Coordinators (“OSCs”), Mr. Way and Mr. Griswold. Way was the lead OSC for the EPA; Griswold temporarily relieved Way as OSC on August 4th and 5th, 2015, which is when the disaster occurred. The Movants requested an adverse inference sanction, asserting ESI spoliated for Way and Griswold was as follows:
- iPhone: None of Mr. Way’s text messages were preserved until the EPA collected his iPhone in May 2016. Produced documents showed that Way exchanged at least 245 Gold King Mine-related text messages between July 7 and October 20, 2015, but they were lost.
- iPad: EPA could not access ESI on Way’s iPad because Way couldn’t remember his password.
- iPhones: Griswold had two iPhones – the first was backed up, but the EPA couldn’t remember the password; the second iPhone was erased when the EPA reset it to factory settings in May 2018.
- iPad: Used “extensively for work related to the Gold King Mine, including to take photos in the field,” the iPad “had been ‘cleared’ because the iPad was ‘reset to factory settings’” before Griswold turned it in to the EPA.
- OneDrive Account: Not collected until almost five years after the incident; Griswold’s folders related to the Gold King Mine, which contained “around 800 photographs and 120 documents” related to Griswold’s work there, were missing and not preserved.
In both cases of forgotten passwords, the Federal Parties obtained assistance from vendors who attempted to crack the passwords through “brute force” for 13 weeks but were unsuccessful.
What the EPA and Federal Parties Did to Preserve Evidence
Despite the failures with Way and Griswold, the EPA did undertake several significant preservation steps. The EPA issued an almost immediate litigation hold related to the Gold King Mine release. They also sent additional instructions directing custodians to preserve “all messages related to Gold King,” with contacts for technical assistance in November 2015. The EPA also “followed up on the preservation of texts with custodians in April 2016” and “sought to preserve texts through this process on approximately 500 cell phones.”
In May 2016, the EPA held an “in-person text preservation and cell phone exchange meeting” with Griswold and Way, along with an EPA attorney and technical staff available to assist, and both “signed a form certifying compliance with the text preservation instructions.”
The Federal Parties stated that “today over 1,000 custodians are subject to the litigation hold.” Clearly, a broad ESI preservation plan was set in place.
The Disaster Within the Disaster
But again, the devil is in the details.
As evidenced above, the EPA and Federal Parties issued a litigation hold six days after the disaster, “sought to preserve texts” on approximately 500 cell phones, and had over 1,000 custodians subject to a litigation hold for six years. Yet, they failed to ensure preservation on critical ESI for two of the most significant custodians of all – the two individuals who served as the lead On Scene Coordinators before and during the disaster itself.
As a result, New Mexico District Judge William Johnson granted the request for an order permitting the plaintiffs to introduce evidence of the Federal Parties’ spoliation of their data at trial. As for the request for an adverse inference sanction, Judge Johnson gave an opportunity for the parties to file a supplemental briefing on the topic, while noting several issues that “remain unclear” regarding the spoliation. So, things could get a lot worse for the EPA and the Federal Parties.
Over-Preserving and Under-Production
The cost of overcollection can be exorbitant. With 1,000 custodians being preserved and 500 custodians presumably undergoing at least a partial collection in this case, the discovery costs borne by the EPA and Federal Parties were potentially astronomical. Just the collection of 500 mobile devices could run upwards of $375,000. Clearly, overcollection is to be avoided.
Collection is not the greatest cost of discovery, however. The typical cost of moving data from a mobile device forward from collection through processing, review, and production can be over $20,000 for each custodian. In this case, 500 mobile devices could cost a staggering $10 million.1
In addition, the costs and increased risk associated with preservation are also significant as well. For six years, the data associated with 1,000 custodians has been subject to a litigation hold, which means that data can’t be deleted, regardless of whether that data is redundant, obsolete, or trivial (ROT). This increases the possibility that organizational and personal data could be subject to potential exposure through data breaches or potential future litigation – a risk that need not be incurred if the details of the matter are understood in the beginning. Without proper discovery scoping at the outset of a case, parties may not know until months, perhaps even years, later (as in this case) which custodians and data sources hold the most relevant information.
Without this detailed understanding, the EPA and Federal Parties failed to appropriately preserve data on perhaps two of the most important custodians in the collection. That led to sanctions (which may ultimately be even more significant), despite significant preservation and collection efforts.
How This Could Have Been Avoided
Relying on two critical custodians to self-collect ESI eight months later, while subjecting up to 1,000 other custodians to a litigation hold for six years, led to disaster for the EPA and Federal Parties in this case. Leveraging technology to conduct a diligent assessment and prioritization of potentially relevant custodians as soon as possible after issuing the legal hold could have enabled ESI for these two custodians to be preserved, while eliminating significant collection and preservation costs for low relevant or nonrelevant custodians, saving perhaps millions of dollars.
Additionally, a centralized decision repository could have been utilized to store critical information about the data sources, such as password details. This centralized tracking system could have been accessed as the primary reference source, thereby eliminating the spoliation issues that occurred.
An old muffler commercial once used the tagline “you can pay me now, or you can pay me later.” In this case, the EPA and Federal Parties may have done both – likely incurring millions of dollars to preserve and collect ESI for many custodians who may have minimal relevance to the case, and potentially many more millions due to their failure to preserve the two most important custodians. This failure of detail could lead to the adverse inference sanction sought by the movants – virtually guaranteeing an unfavorable outcome in the case itself.
Unfortunately, this case will become a standard in what not to do during discovery. Fortunately, Prism Litigation Technology offers a solution to the problem presented here, lowering the costs and risks associated with overly broad preservation and over-collection of custodian data. That solution is Evidence Optix® (a product of Insight Optix, a Prism partner), a patented technology-enabled workflow that provides the critical details necessary to avoid these eDiscovery disasters. Evidence Optix facilitates attorney-driven assessment and prioritization of relevant custodians and identification of key data sources to support actionable proportionality prior to collection. It allows organizations to defensibly reduce the scope of discovery early on, reducing downstream costs while mitigating risk.
In addition to leveraging Evidence Optix as part of its defensible data culling and promotion services, Prism has integrated index-in-place, enabling a highly targeted and efficient in-place search and collection strategy. This capability, coupled with our proprietary language analytics, allows Prism to precisely and comprehensively identify documents that contain language relevant to the issues at stake.
The combination of early discovery scoping and proportionality analysis, coupled with index-in-place and targeted language-based data mining dramatically increases speed to review and reduces cost, time, and risk throughout the litigation lifecycle.
eDiscovery disasters are preventable when organizations leverage technology and best practices to address their discovery obligations. Timely assessment and prioritization of custodians and data sources can not only produce considerable cost savings, it can also control those devilish details that could spotlight your case in an eDiscovery blog!
1 Estimates based on assumptions from the George Washington University Complex Litigation Center’s Proportional Discovery Model Itemized Cost Prediction Calculator, found at https://insightoptix.com/george-washington-university-complex-litigation-center-discovery-proportionality-model-tools/