Ride the Lightning

THE WHOOPS-A-DAISY DEFENSE: O’MELVENY APOLOGIZES FOR MISSING E-MAILS

February 1, 2008

For a while the attorneys at O’Melveny & Myers must have been cheerfully singing “We’re in the Money.” They charged more than $12 million in six months in their representation of New Century Financial Corp, a failed subprime lender. Now the firm has come to national attention after a blistering report was filed by a bankruptcy examiner alleging that O’Melveny misled the court about funds that might belong to creditors. Though there’s more to the facts, from an electronic evidence standpoint, it was notable that 700,000 relevant e-mails were not turned over to the bankruptcy examiner.

The firm has apologized to U.S. Bankruptcy Judge Kevin Carey for what it termed a discovery “mishap” which it blamed on an outside vendor. A "mishap" sounds so innocent and inconsequential. One does wonder about the oversight of the outside vendor as well as the convenience of having relevant and damaging evidence not emerge in the discovery process.

The seemingly never-ending stories of vanishing ESI certainly has given rise to what our British friends might sardonically call the “whoops-a-daisy” defense.

The whole tale of woe may be found at http://www.legalweek.com/Articles/1088809/O’Melveny+says+sorry+for+missing+emails.html

Tip of the hat to my friend Tina Ayiotis for passing this on.

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