DISCLAIMER: This report is based on readings of Jessica Mintz's AP article and the Guidance response posted by Jack Mackenzie listed in the References section below. These two sources are incomplete and some of the ordering in the events timeline are based on best guess. This information is provided for discussion and should not be considered completely accurate.
| Guidance | Cassondra Todd | Tim Leehealey | William McDonald |
|---|---|---|---|
| Guidance runs Microsoft Exchange and maintains an email archive that has several indexes, perhaps one per back-up file. | |||
| On May 2007, before Todd filed her claim, Guidance learns that the archive's index for a backup tape has failed making the data not easily accessible. The dates for events surrounding Todd's performance review and subsequent termination are not known so this may have happend before, during, or after during those events. |
|||
| Todd receives a "scathing performance review" for 2007 | Leehealey questioned whether someone in the company was setting Todd up to be fired. "Other than (Guidance Chairman Shawn McCreight's) hatred of her, she was a good employee and produced for me," he wrote to Victor Limongelli, now Guidance's chief executive. | ||
| Todd asks for an investigation into her 2007 performance review | |||
| Guidance tells Todd it found no evidence of discrimination. It apologized for the harshness of the review but wouldn't delete it from her file. | |||
| Todd responded by hiring Arnold Peter, an attorney with Los Angeles-based Raskin Peter Rubin & Simon. | |||
| Guidance lays off Todd a few weeks later. | |||
| During October 2007, Todd filed a wrongful-termination claim | |||
| Guidance was required to perform discovery | Todd was required to perform discovery | ||
| Guidance asked that deleted files be ignored during discovery because hunting for them would be a burden. | |||
| Guidance executives felt the company was not legally required to search its backup tapes at first, given the expense of reading them. | |||
| Todd felt the results of Guidance's initial run of e-discovery seemed scant. She expected to see far more e-mails from her days in the company. But she couldn't argue Guidance was holding back - intentionally or not - until she got a break a few months later. | |||
| Todd finds emails that had not been turned over by Guidance. Todd reviews emails that had been printed and saved by Tim Leehealey, Todd's first manager at Guidance and now the head of a rival company. Todd finds emails about her that Guidance hadn't turned over. In one, Leehealey questioned whether someone in the company was setting Todd up to be fired. | |||
| McDonald ordered Guidance to do a more thorough round of e-discovery | |||
| Guidance came back empty-handed, except for news that one of its e-mail backup tapes had been corrupted. The corrupted backup tape had purportedly gone unnoticed for nearly a year. | McDonald told told Guidance's attorney "I want this game-playing stopped," according to a court transcript. | ||
| McDonald ordered the company to pay for Todd's expert witnesses and her travel costs, plus the cost of rescheduling the trial. | |||
| On May 9, 2008, McDonald ordered inaccessible data restored, searched, and produced despite Guidance arguments that it would take weeks, amounting to a task Guidance would charge customers $100,000 to perform. | |||
| Guidance produces the records to the satisfaction of McDonald | |||
| McDonald determined that Guidance ultimately met its discovery obligations and did not spoliate any data; however he found enough information to decide in Todd's favor. He awarded her more than $300,000, about twice her annual compensation. | |||
| Guidance provides a response to AP article that states "As is common in litigation, the plaintiff used whatever tactical and strategic obfuscation it could in attempts to confuse and distract the arbitrator from the merits of this case." |
The news article published over the weekend addresses a discovery dispute in a concluded arbitration matter that centered around Guidance's duty to proactively search and restore backup tapes. In short, rather than reflecting any discovery failing, the interim discovery ruling by the arbitrator was contrary to both the Federal Rules of Civil Procedure and existing case law. Guidance was in a routine employment dispute with a former employee. As is common in litigation, the plaintiff used whatever tactical and strategic obfuscation it could in attempts to confuse and distract the arbitrator from the merits of this case. The specific discovery matter raised in an interim order involves an email archive Guidance Software maintained for backup and disaster recovery purposes. In May of 2007, before claimant filed for arbitration, we learned the archive's index for one back-up file had become corrupted and was not easily accessible or readable using Microsoft Exchange Server. The archived emails remained intact and preserved at all times, but were in an inaccessible format, as they were stored on backup tapes. We maintained at the outset of litigation in October 2007-and maintain now-that the Federal Rules of Civil Procedure clearly provide that there is no affirmative duty to restore, search, and produce inaccessible data, absent a court ruling. On May 9, 2008, the night before the arbitration was scheduled to commence, the arbitrator ordered the inaccessible data restored, searched and produced, and that effort and production was subsequently completed shortly after the ruling was issued, to the satisfaction of the arbitrator. The arbitrator's final award determined that Guidance ultimately met its discovery obligations and did not spoliate any data. However, the earlier interim order faulted Guidance for not previously and proactively engaging in the burdensome and costly task of restoring and searching several terabytes of inaccessible back-up tapes as part of the litigation process (the ultimate arbitrator award reflected an amount in controversy as $300,000) and we obviously disagree that applicable law required such activity. It bears mentioning that Guidance Software does not develop or sell solutions that target back-up tapes. We sell solutions that enable parties to conduct efficient and targeted discovery.