Guidance Software Inc, the makers of Encase ( the famous forensics tool), who also make electronic discovery tools, have been criticized by the courts for failure to find documents in their own electronic discovery case.
The irony of this is not wasted on the industry and FTI and Aon, have already come out to comment to Guidance’s failure.
To make matters worse for Guidance, Access Data, their rivals and the company who attempted to buy Guidance recently, where able to produce the documents required.
The court case revolves around an ex-employee suing for damages, an Arbitrator, Guidance not finding documents, and an ex-employee now at Access Data
The claimant, and former marketing director, Cassondra Todd (pictured inset) alleges she was forced out of Guidance Software and had several negative, but unwarranted, performance reviews. The claim is that the Chairman of Guidance , Shawn McCreight, put pressure on her manager to get her out. Cassondra Todd argues that she was discriminated against, mainly because she was a woman. Todd was eventually sacked, and as a result Todd sued Guidance software for wrongful termination.
As part of the litigation process Guidance were expected to produce any emails they have to that effect.
However, Guidance produce relatively few emails between Todd and the company, and no self incriminating documents.
However, one of Cassondra Todd’s former managers at Guidance, Tim Leehealey who is now the CEO and Co-Owner of Access Data, happened to retain some of his reviews of Cassondra Todd.
One of this emails, to the CEO of Guidance Software stated that “Other than [Guidance Chairman] Shawn McCreight’s hatred of her, she was a good employee and produced for me,”.
The documents that an ex-employee had a copy of were not produced by Guidance Software, and as Tim Leehealy stated “Those documents were on people’s hard drives for sure, and they [Guidance Software] didn’t produce them,”. This implies, of not states explicitly, that Guidance Software failed to produce all of the documents they should have.
The Arbitrator in this case, as it was taken to arbitration rather than a court hearing, hinted that he believed that Guidance Software were deliberately hiding information by stating that “I want this game-playing stopped“.
The Abitrator found against Guidance Softwar in this case, again indicating that Guidance Software were not playing fair. As a result GSI were asked to pay the costs of Todd, and she was awarded $300,000 in compensation.
The fact that Guidance did not “find” these documents, either through failure or malice, poses a problem for Guidance Software, legally and for PR purposes.
FTI’s Brett Harrison stated that Guidance Software’s electronic discovery Process “was not performed to commonly accepted standards within the e-discovery field and in great part did not occur at all.”
This case has a hint of the 2005 incident when Guidance Software has hacked into, and credit card details stolen. At the time Guidance was pushing security, and intrusion detection courses.
The irony…they just need a good marketing staff now…..