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"West Virginia High Court Addresses Electronically Stored Information in CashCall v. Morrisey"

Bowles Rice Electronic Discovery Alert
June 12, 2014

Eleven years after Zubaluke I, the Supreme Court of Appeals of West Virginia, in CashCall v. Morrisey, finally officially dipped its toes into the choppy waters of electronic discovery. As a result, in West Virginia, if you print out an electronic document, stripping it of its "searchability," and produce it in paper format instead, you now may be subjecting yourself to the risk of sanctions, including a possible award of attorney's fees.

In a 28-page Memorandum Decision dealing with post-trial issues in a West Virginia Consumer Credit and Protection Act case, the Court provided important guidance that touches on the proper protocol for disclosure of searchable electronic documents. CashCall, in response to an investigative subpoena issued by the State Attorney General that specifically requested searchable electronic records, produced paper records of debt collection activities in West Virginia. This, according to the Court, was sanctionable conduct.

  "Following considerable litigation regarding the subpoena, CashCall provided various business records including the names and contact information for its West Virginia customers. However, CashCall provided those records primarily in paper format, even though the Attorney General asked for the documents in a searchable electronic format, and CashCall routinely maintained the documents in a searchable electronic format."

Regarding the Circuit Court's award of attorney's fees in response to CashCall's sanctionable conduct, the Court noted:

  "Here, CashCall's actions — such as its refusal to produce the names and contact information for its West Virginia customers and its refusal to produce requested documents in an electronically searchable format – were vexatious and oppressive. Therefore, the circuit court clearly had legal authority to grant the State its attorney's fees as cost both for CashCall's violations of the WVCCPA, and for CashCall's vexatious and oppressive conduct. As such, we find that the circuit court did not abuse its discretion in awarding the State its reasonable attorney's fees as costs."

The CashCall decision appears to be a part of a larger movement by the Court to recognize and embrace the reality of electronic data and the unique issues it brings to the litigation landscape. The decision coincides with proposed new West Virginia Rules of Professional Conduct, which, in new Rule 1.1, requires West Virginia lawyers to "keep abreast of …benefits and risks associated with relevant technology" as part of their duty to maintain competence in the legal profession, as well as the adoption of a Unified Electronic Filing System for use by West Virginia Courts and litigants.

As the West Virginia courts continue to adapt — particularly in the new West Virginia Business Courts — there will be more changes. For now, printing out all responsive electronic documents can be more than just time-consuming and archaic. If a discovery request or subpoena asks that the responsive materials be produced in an electronically searchable format, and the responsive documents are kept in such a format, they must be produced in their searchable, electronic format, or you risk being sanctioned!