Above The Law -“…In DR Distributors, LLC v. 21 Century Smoking, Inc., originally filed in 2012, two companies that sell electronic cigarettes brought suit and counterclaims alleging, among other things, trademark violations under the Lanham Act. The court’s decision is 256 pages long. Like the Smalls decision 18 months ago, this decision was at times painful to read. Not because it was long but because it seems that everything that could go wrong did go wrong. In truth, though, most of the damage was entirely self-inflicted and could have been avoided. Much of the blame here is on the defendant because they had repeatedly told former defense counsel that all relevant ESI [electronically stored information] was on four computer hard drives and that they “had all the data,” which was false — and they knew it was false. The defendant here did nothing to educate counsel otherwise, even after it became apparent that defense counsel was under a distinct misunderstanding. In the end, the defendant failed to reasonably search for and produce ESI even after it had been instructed to do so by the court. Former counsel for the defendant is not without blame, though. His errors were fundamental. And “because those fundamental errors occurred at the outset of the case, they permeated the entire case from then on,” the court wrote. Defense counsel failed to understand his client’s ESI, failed to conduct custodian interviews, and failed to issue a written legal hold. In fact, the client here was left to perform the “self-collection of ESI without any instruction, monitoring, or documentation.” In the end, the defendant failed to preserve and timely disclose relevant ESI. Relevant information was spoliated and even after the spoliation was discovered defendant lied about it and counsel failed to inform the court…”