By Peter Coons, SVP, Computer Forensics and Collections
A recent decision in New York State court is a prime example of how not to conduct electronic discovery.
On Feb. 16, Judge Fried issued an opinion that dismissed a complaint against defendant Paul Hastings while granting defendants motion for sanctions against the plaintiff. The action, which was initially filed in 2008, was for professional malpractice brought by plaintiff 915 Broadway Associates LLC against defendant Paul, Hastings, Janofsky & Walker LLP.
At issue was the fact that a letter of credit expired without being drawn upon. Plaintiffs claim it was the defendant’s — plaintiff’s former counsel — responsibility to inform plaintiff about the expiration date. Paul Hastings responded by claiming it was the responsibility of 915 Broadway, and not of Paul Hastings, to monitor dates related to the financial aspects of the transaction, which required no legal prowess to interpret.
Additionally, Paul Hastings claimed that one of the principal players at 915 Broadway willfully destroyed documents after the duty to preserve such documents arose in 2008 when the litigation hold was circulated. This last part is the crux of the matter.
