Spending 9 percent of your organization's total annual budget on e-discovery for a case to which you are not even a party may seem exorbitant. But despite going to such lengths, you can still be found in contempt if you miss agreed upon production deadlines.
That was the outcome of In re Fannie Mae Securities Litigation, which the D.C. Circuit decided Jan. 6. In one of the few appellate cases addressing e-discovery, the appeals court upheld a district court decision finding the Office of Federal Housing Enterprise Oversight (OFHEO) in contempt for failing to meet its e-discovery deadline, even though the agency spent $6 million attempting to comply.
Movable Goal Posts
OFHEO hired 50 contract attorneys and racked up $6 million in expenses attempting to comply with the order. Nevertheless, the agency asked for two extensions to production deadlines and even then produced only 330,000 non privileged documents. In addition, it had not completed the required logs listing documents withheld solely on the grounds of qualified deliberative process privilege, which exempts government agencies from disclosure of materials containing communications that are part of the agency's decision-making process. The requesting parties again asked for a contempt finding.