The Dangers of Electronic Discovery: Lessons From Morgan Stanley

Shortly before the trial, after nearly 2 years of litigation, Judge Elizabeth Maass issued a partial default judgment against Morgan Stanley for what she characterized as a repeated failure to produce e-mails requested by Perelman during discovery. Judge Maass indicated that she would affirmatively instruct the jury to assume that Morgan Stanley had participated in a fraud. At the beginning of the trial, Judge Maass did exactly that; telling the jury that it was to assume that “Morgan Stanley participated in a scheme to mislead (Coleman) and others and to cover up massive fraud.” Though Perelman still needed to prove that he relied on Morgan Stanley, the judge's extraordinary instruction rendered an adverse verdict against Morgan Stanley a fait accompli.

The Morgan Stanley case is the most recent example of the perils that corporate defendants face in the era of electronic discovery. Electronic evidence, and especially e-mail, now plays a starring role in litigation and investigations involving large corporations, particularly in areas such as employment discrimination, fraud and corporate mismanagement. Judges are increasingly familiar with electronic discovery, and are increasingly willing to impose heavy sanctions on corporations who do not comply with electronic discovery requests. As the Morgan Stanley case shows, the consequences of these sanctions can be dire. Therefore, it is important that companies take heed of the lessons of the Morgan Stanley case, and ensure that they have in place a comprehensive and effective system to recover and produce electronically stored documents.