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The Gulf Coast oil spill cases, now consolidated in New Orleans under the supervision of U.S. District Court Judge Carl Barbier, hvae focused attention once again on e-discovery in MDL cases. Here are a few preliminary thoughts had while speaking with Gavin Manes, President and CEO of Avansic , the Tulsa based provider of e-discovery and digital forensics services.
The Deepwater Horizon disaster has causedBP and the other companies to be aware of their legal obligation to preserve and collect relevant electronic information. More than 40 civil cases have already been filedin Federal court in New Orleans alone and the involved companies are under document hold demands, subpoenas and protective orders in those cases. Additionally, there have been a number of investigations launched by Congressional committees, as well as federal and state agencies including the U.S.Justice Department and the Attorneys General of at least five states. There may be many more casesto come related to the oil spill disaster, cleanup, and other unforeseen issues. The litigation to come for BP regarding this disaster has a number of unique issues; first, the scale of discovery is remarkably large due to data volumes and locations as well as the number of adverse and related parties involved. Each company should already be focusing on data preservation and collection (and will continue to do so) and backup tape analysis. There will be massive amounts of data, perhaps more than any other case in US litigation history which will create a challenge for any known automated filtering and review methods. It’s going to get much, much worse for BP before it gets better – quite like the oil spill itself. Second, gaining access to this amount of data is another hurdle. Most likely, technology will be required to allow aggregation and sharing of common data among multiple parties in disparate venues. Similar needs were encountered during the breast implant litigation, but the availability of web-based tools opens up new avenues to transcend these problems in ways that were inconceivable even five years ago. Having all sides agree to use the same tools and methods may be a significant obstacle, one that has been historically solved by judicial intervention. In this case, collaboration must go beyond agreements to include document review and useful production data. The legal system’s response to this collaboration issue may well forge a new path for the future treatment of e-discovery in large multi-state cases. In this case, the odds are stacked against a quick resolution for all parties. In general, the legal system does not handle matters quickly. The large number of current and historical documents combined with the numerous criminal and civil actions make it likely that litigation related to this case to extend for more than a decade. Although the oil may be leaving, the e-discovery implications from the BP case will continue for years to come and may create a new standard. |
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