• April 22, 2020

The linked recent sanctions order from U.S. Mag. Judge Katherine M. Menendez (D. Minn.) is a scalding, withering, and lacerating indictment of defendants and one of their lawyers, in particular. Hit up pp. 31-33 for a list of “the most egregious examples” of misconduct by Chicago-based lead defense counsel, Alexander Loftus.

Massive red flags surfaced in the case at the outset when two local law firms withdrew as defense counsel. (The allegations of intentional wrong-doing in the complaint also seem ominous, at least with 20/20 hindsight.)

The case illustrates the importance (and the cost) of competent e-discovery.

Problems for the defendants started immediately. They negotiated an aggressive and onerous discovery standard for the plaintiff and then seemed to take the position that they would not be obligated to meet the same standards themselves. Defendants followed this with shaky ESI collection methods (apparently unsupervised “self-collection”) and incompetent ESI productions (producing corrupted and unusable data and then improperly bates-numbered files (with duplicate bates numbers)).

Plaintiff, on the other hand, appears to have retained LogikCull for its e-discovery from the get-go. In Judge Menendez’s opinion, we see no criticism of Plaintiff’s discovery processes. On the other hand, LogikCull’s fees appear to have exceeded $80,000 (and counting) (see here at p.29). (You get what you pay for?)

As is almost always the case in monitoring civil litigation in which one is neither counsel nor party, it is very difficult to apportion blame with certainty for misconduct as between the lawyers and the parties. Maybe it is almost always a hazy indefinite combination. Along similar lines, it can be difficult to tell what the thinking is behind the misconduct (at least from the judge’s perspective) — incompetence (being penny foolish and pound foolish?) or some opaque, calculated Machiavellian strategy. That said, in this case, it is way beyond our abilities to discern any defense or justification for defendants’ and defense counsel’s actions described in Judge Menendez’s sanctions order.