No More Chances: Personal Devices, Resistant Custodians, and the Cost of Ignoring an ESI Discovery Order (MCLE)

Adam J Schwartz, Esq. entered Breaking Code Silence v. McNamara as a consultant on document review and ESI issues. His initial assignment was to help develop and advocate the defendants' position in a court-ordered joint ESI plan.

The assignment became a two-year engagement spanning discovery, attempted resolution, and summary judgment. The plaintiff ultimately dismissed the case with prejudice before the anticipated ruling on the defendants’ motion. After dismissal, the court found that the plaintiff violated the stipulated ESI order by failing to preserve, search, and produce ESI from required organizational and personal sources. The court awarded the defendants $34,986.50 in fees.

Using that dispute as a roadmap, this program shows paralegals how to identify personal data sources, interview custodians, track collection, document refusals, escalate problems, and build a defensible discovery record.

Attendees leave with tools they can use the next morning

• A custodian checklist covering company and personal devices, accounts, applications, cloud storage, and backups.
• A source matrix showing preservation, access, collection, processing, review, and production status.
• A collection log documenting instructions, responses, refusals, follow-up, and escalation.
• A quality-control checklist for file counts, date ranges, metadata, threading, attachments, and collection gaps.
• A warning framework for identifying when an ordinary delay is becoming a court-order problem.