Now You See It, Now You Don't: The "Hidden Partition" Trick
The Fortiva Blog has an excellent discussion of 2006 Phoenix Four v Strategic Resources. In this case, which is also adding to the ongoing discussions on ethics, the court faulted defendant's counsel for not being proactive in searching for relevant ESI and called them “grossly negligent.”
The 2006 Phoenix Four Inc v. Strategic Resources Corp., decision indicates that counsel has a duty to be proactive regarding their client’s e-discovery. In this case, SRC Corp. had ceased operations and was evicted from its offices after the legal dispute had commenced. As a result, during discovery they claimed that there were no computers or electronic records to search.
Although counsel had discussed with the defendants the need to locate and gather paper and electronic documents, it was still found that counsel had “failed in its obligation to locate and timely produce the evidence stored in the server that the Defendants had taken with them.” The court held the attorney responsible for not asking about hidden partitions in his client’s servers, where it turns out, is where most of the evidence was later found.
According to the judge in this case, counsel's obligation is not confined to a request for documents; the duty is to be proactive and search for sources of information. The expectation was that counsel would undertake a more methodical survey of the Defendants’ sources of information, and not simply accept the defendants’ representation that, because it was no longer in operation, there were no computers or electronic collections to search.
The judges [sic] expectations did not end there, however. Counsel was also expected to have asked what had happened to the computers and whether information was stored on the server that the defendants had kept. And, in the absence of a satisfactory answer to that question, counsel would have been expected to direct that a technician examine the server. According to the court, this forensic effort is no different than questioning the information technology personnel of a live enterprise about how information is stored on the organization’s computer system, and is therefore considered part of counsel’s duty.
The court found counsel's "deficiencies here to constitute gross negligence" and awarded monetary sanctions against counsel and client. [Emphasis added.]
I’ve written before about the expanded role of trial attorneys under the e-discovery amendments, but this one surprised me. I don’t know any attorney who would think to ask whether there whether there were hidden partitions on a server.
I often recommended taking valid forensic images of computers and servers at the beginning of litigation, but not for that reason! However, a forensic investigation of the server would have disclosed the hidden partition in this case.
I use a standardized questionnaire/interview to map out client’s ESI and I’m tempted to add a question about hidden partitions to it. But anyone who would create a hidden partition to hide information probably wouldn’t tell me about it! But as e-discovery case law unfolds, it remains clear that trial counsel’s role is expanding and includes a responsibility to be proactive in dealing with their client’s ESI—both understanding it and finding it.
