Lawyers have taken a lot of criticism over the years for being slow to wrap their heads around eDiscovery. However, it turns out that lawyers aren’t the only ones having trouble with the issue. Silicon Valley, the hotbed of high-tech innovation, is now struggling to deal with electronic evidence in litigation.
The Bay Area is still, and will likely always be, the hub of technological innovation in America. But many Silicon Valley companies are settling into early middle age. As companies that once played fast and loose with the rules get older, they are facing not only impatient shareholders, but also lawyers, regulators, and new legal challenges. And that means eDiscovery.
This Could Get Embarrassing…
Most recently, some of the biggest tech execs have had their private business dealings thrown into the open thanks to discovery. It seems that tech giants Google, Intel, Adobe, Apple and others have conspired over the years to suppress tech wages through an informal agreement against poaching high-value employees.
Pando has the whole story, including threatening email exchanges between Steve Jobs, Sergey Brin and other top CEOs. The matter is still in its early phases, but it is surprising that savvy tech execs aren’t more circumspect about putting potentially incriminating comments into email.
Even worse, tech giants have been found incapable of dealing with relatively straightforward discovery requests. In May, US magistrate Judge Paul Grewal ordered Google to show how it is searching for documents related to its Android operating system that Apple sought in the Apple v. Samsung patent infringement suit.
The ruling required Google to share with Apple the keywords and custodians it identified to respond to a subpoena after the search giant failed to find requested documents.
How can the search giant fail at eDiscovery search? Google has so far been forced to produce more than 50,000 pages of documents and voluminous source code, which it complains puts a burden on the company as a third party.
“The impact of requiring non-parties to provide complete ‘transparency’ into their search methodology… in responding to non-party subpoenas whenever unsubstantiated claims of production deficiencies are made would be extraordinary,” Google said in a court filing in April.
Burden or Obligation?
Judge Grewal had no patience for this complaint. He balanced the burden Google faced with responsibility that litigants must bear, finding that third-party status does not mean a party can engage in “obfuscation or obstinacy.”
He further ruled, somewhat snarkily, “The court cannot help but note the irony that Google, a pioneer in searching the Internet, is arguing that it would be unduly burdened by producing a list of how it searched its own files.” The court gave Google 48 hours to show its search terms and custodians, and ordered the parties to meet and confer to head off further disputes.
Sadly, this is nowhere near the end of eDiscovery abuse and trouble in this matter. Attorneys for the high tech giants have also proven unable to protect privileged documents in eDiscovery. In the same Apple v. Samsung lawsuit, attorneys had produced patent license agreements, including a June 2011 license between Apple and Nokia. The attorneys had correctly marked the Apple-Nokia license as “Highly Confidential —Attorney Eyes’ Only,” as permitted by the court’s protective order. Yet somehow, these files were selectively leaked directly to executives with Samsung.
After discovery on the matter, Judge Grewal ordered attorneys from Quinn Emanuel to “reimburse Apple, Nokia, and their counsel for any and all costs and fees incurred in litigating this motion and the discovery associated with it, as required by Rule 37 in the absence of ‘substantial justification’ or other showing of ‘harmlessness,’ neither of which the court finds here.
That expense, in addition to the public findings of wrongdoing, is, in the court’s opinion, sufficient both to remedy Apple and Nokia’s harm and to discourage similar conduct in the future.”
We’ll keep an eye on this and other cases for more developments. When it comes to technology, Silicon Valley is still the king. In eDiscovery, tech titans have shown they have a lot to learn.