Jason Tashea’s article in the ABA Journal provides an interesting perspective on a lawyer’s duty of competence in relation to technology. He references the termination of Google+ to pose the question of the impact of both data storage and data destruction on the practice of law. Attorney
Because lawyers are often confronted with discovery requests that do not necessarily align with their clients data retention policies, Tashea employs the case of Brown v. Tellermate Holdings as a vehicle to illustrate the importance of data storage. Robert and Christine Brown sued their ex-employer, Tellermate, arguing that they were fired on the basis of age discrimination. The Browns alleged that discrimination had to be the only reason for dismissal because they were making enormous sales for Tellermate. Tellermate denied the allegations.
During discovery, Tellermate was not able to show sales data to support their claim from the database of the company they used to track sales information, Salesforce.com, because Salesforce deletes customer data after six months. U.S. Magistrate Judge Terence P. Kemp emphasized that the failure to preserve this data was the “most serious” among the “litany of discovery abuses” in this case. “Significant problems arose in this case for one overriding reason: counsel fell far short of their obligation to examine critically the information which Tellermate gave them about the existence and availability of documents requested by the Browns,” the magistrate judge wrote in a 2014 opinion and order.
The magistrate judge found Tellermate to be in violation of federal discovery rules. He sanctioned Tellermate and counsel for negligence and bad faith, additionally preventing them from using certain evidence at trial. He also awarded attorney’s fees to the plaintiffs. The lawsuit was settled out of court years later.
According to Barry Schwartz, senior vice president at BIA (an e-discovery service provider), the lost data in the Brown case is “’not a whole lot different’ from a sunsetting application that contains electronically stored information.” He says the main lesson from the Brown case is that “if you are using a data resource that you’re aren’t going to be using any longer, you have an obligation to think about what the implications are.” Information that may eventually be lost should be backed up. For example, archiving specific data in a secure environment such as a cloud-based storage service is a low-cost solution that ensures that data is preserved. However, he notes, it is “still important to research the security of off-premises cloud storage.”
Jen Salyers, a partner at Context Law in Minneapolis, says that when a firm is negotiating a new software vendor contract, they should consider what would happen if the vendor’s services were terminated. If the firm is a larger business that has leverage over the vendor, she suggests adding “contractual terms that would require the vendor to provide support services for a term of years,” or contain certain refund language. If the business is smaller, she recommends a contingency plan in case the software or service “sunsets,” such as knowing whether the stored data can be exported into a neutral platform.
According to Schwartz, “you don’t know what you don’t know until you ask.” As technology continues to evolve, it is important for attorneys to keep themselves informed of developments, especially attorneys who use a contemporary storage platform to preserve client’s confidential information.
Read Brown v. Tellermate Holdings here. Read Jason Tashea’s article here.
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