Judge Timothy C. Batten, Sr., of the District Court for the Northern District of Georgia, imposed discovery sanctions against Delta Air Lines after it failed to disclose documents contained in backup tapes and hard drives that had been inadvertently overlooked by Delta’s counsel and IT personnel. The opinion is In re Delta/Airtran Baggage Fee Antitrust Litigation, 2012 U.S. Dist. LEXIS 13462 (N.D. Ga. February 3, 2012).
In the underlying action, Plaintiffs allege that Delta conspired with other airlines to impose a baggage fee on a passenger’s first bag. During discovery, Plaintiffs served Delta with document requests, seeking all documents related to its decision to impose a first-bag fee on its air passengers. Delta responded by producing approximately 103,000 pages of documents prior to the close of discovery. Delta made a similar production to the Department of Justice, which was also investigating the baggage fees.
Later while responding to a discovery request from the Department of Justice in a separate investigation, Delta produced documents relevant to the baggage fee action that had not previously been produced. When the Department of Justice noticed the discrepancy and contacted Delta, Delta notified Plaintiffs and the court, and opened an investigation into its document production efforts.
The investigation revealed two sources of unproduced documents. First, the contents of a number of custodian hard drives were never uploaded to Delta’s electronic information management program. Only documents uploaded to the program were reviewed for production. Second, during its investigation, Delta’s IT personnel found an unmarked box containing backup tapes of server information in the office that manages document discovery responses. The tapes contained documents that were relevant to the baggage fee litigation. Delta eventually released an additional 60,000 pages of documents to Plaintiffs.
As a result, Plaintiffs sought discovery sanctions from Delta. The court found that Delta was subject to sanctions for two violations. First, the court determined that Delta had failed to make a reasonable inquiry into the completeness of its discovery responses as it had certified pursuant to FRCP 26(g). The court indicated that Delta should have done a better job making sure that the IT department followed its instructions and produced the correct documents. Based on the violation of FRCP 26(g), the court awarded Plaintiffs reasonable expenses, including attorney’s fees, caused by Delta’s violation. Second, the court determined that Delta had breached its obligation to supplement its discovery requests pursuant to FRCP 26(e). According to the court, Delta should have been more diligent in searching such an obvious area for tapes related to the investigation. Given its failure under FRCP 26(e), the court imposed sanctions under FRCP 37 and awarded Plaintiffs reasonable expenses and attorney’s fees caused by Delta’s failure, including fees and expenses related to the motion for sanctions, the extended discovery period, and a separate motion for spoliation sanctions.
Errors in e-discovery practice can easily occur to any party. The key to avoiding the situation is taking an active role not only in creating sound e-discovery procedures, but also ensuring that all personnel are aware of the importance of diligently following them. A simple lack of vigilance on the part of any party can lead to an oversight, and as demonstrated by Judge Batten, such an oversight can lead to sanctions.