An inadvertent spill of 3 million gallons of wastewater by an EPA led contractor crew in the inactive Gold King Mine that polluted rivers in Colorado, New Mexico and Utah (including on the Navajo Nation lands) was a major disaster. As this article by Insight Optix illustrates, the way discovery was handled in the case was a disaster within that disaster.

This was a case I covered a couple of months ago – In re Gold King Mine Release in San Juan Cty., Col., on Aug. 5, 2015, No. 1:18-md-02824-WJ (D.N.M. Aug. 6, 2021) – and their article (This Case Involved More Than One Disaster) discusses how the EPA, understanding the trigger for issuing a legal hold, did so six days after the incident on a vast number of custodians and data sources. Good job, right?

Unfortunately, they failed to prioritize the custodians and data sources most valuable to the matter, ignoring the crucial details of proper preservation and collection of the information most important to the case. They “sought to preserve texts” on approximately 500 cell phones and had over 1,000 custodians subject to a litigation hold for six years. And yet they failed to meet their duty to preserve where it mattered most – two of the most critical custodians in the group. That’s a disaster – within the original disaster!

So, what were the consequences for their failure to meet their duty to preserve? How could those consequences get even worse? And how could this have been avoided? I won’t steal Insight Optix’s thunder, you can check out the article here on the specifics. If you don’t, the answer to the saying “you can pay me now, or you can pay me later” could be both! What a disaster!

So, what do you think? Have you ever spent a lot of time and effort to preserve data and get sanctioned anyway? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclosure: Insight Optix is an Educational Partner and sponsor of eDiscovery Today

Note: This picture above is a stock photo of a flood, not the Gold King Mine wastewater disaster.

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