Courts have decried for years a general lack of understanding and awareness regarding electronic discovery among lawyers. On January 19, 2021, U.S. District Judge Iain Johnston took his concerns on e-discovery competence to a whole new level. In DR Distributors, LLC v. 21 Century Smoking, Inc., Judge Johnston published a 256-page sanctions order that specifically reproved defendants' counsel for failing to take even the most basic steps to preserve relevant information. In doing so, DR Distributors offers what is tantamount to a 101 course for lawyers on e-discovery, particularly regarding the need to keep relevant information in litigation and the consequences for counsel who fail to help clients do so.

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Preservation Failures Lead to Severe Sanctions Against Defendants

The e-discovery trouble began at the outset of this litigation, which involves infringement claims over confusingly similar trademarks for electronic cigarettes. Defendant Brent Duke (the principal of defendant 21 Century Smoking) revealed to his lead counsel that he used web-based email accounts (Yahoo! and GoDaddy) and chat applications (Yahoo! chats) for communication. Before the conclusion of their meeting, counsel orally instructed Duke to preserve his relevant webmail and chat messages.

Nevertheless, counsel did not follow up with a written hold instruction that memorialized what actions Duke should take to preserve relevant webmail and chat messages. Nor did counsel instruct Duke to disable automated deletion features that would eliminate emails or chats. Equally troubling, counsel did not know that webmail and chat messages are typically stored online and not in company servers. As a result, counsel did not attempt to collect and preserve relevant messages from their online repositories, mistakenly believing they could obtain such information from 21 Century Smoking's corporate network.