http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202435729989&EDD_Tale__Caught_in_the_Middle. 

 The article refers to the case Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. May 1, 2009).  In that case Midwest Data Group was retained to search for certain terms in email.  When conducting its search, the company found no responsive email, but it also found evidence that 70,000 email had been deleted immediately after the court discovery order.  The vendor was supposed to produce its findings to the defendant, and it did report that it found nothing.  It then reported to the plaintiff, that it had found evidence of spoliation in the 70,000 deleted files.  This led to the defedant's counsel seeking sanctions against the vendor.  One problem is that the vendor had no instructions regarding what to do in such a circumstance.  Vendors need clear, understandable instructions and that it may advisable for them to participate in early conferences with counsel.  Another problem is that the vendor jumped to a conclusion - while the destruction of 70,000 emails immediately after a court order is suspicious, and best practices would have had the client suspend normal operation of its document destruction policy pending discovery, that destruction is not in and of itself proof of spoliation.  The vendor was also in an unclear situation regarding to whom it owed a duty - the court or the defendant that was its immediate client. 

This situation can create quite an ethical thicket, not just for the vendor but for counsel as well.  An attorney has an ethical obligation to disclose a fraud that its client perpetrates on the court.  Disclosure at some point may have been necessary, but before the vendor jumped the gun and reported a conclusion that spoliation had occurred, the vendor should have brought the evidence of destruction to its own client. 

 In the Law.com article, Krause argues that the case is support for the need for better training in forensics.  This doesn't seem like a lack of forensics knowledge on the part of the vendor.  It's pretty basic to know whether or not email was deleted.  Whether that deletion amounts to spoliation is a legal question.  While forensics experts should be expected to know rules about evidence preservation, chain of custody and evidence handling, they should not have to be lawyers.  To me this case is a good lesson that the ediscovery or forensics vendor needs to be clear what it is being asked to do.  There are also a number of ethical questions that need to have clearer guidelines within the nascent forensics profession.  The attorneys who retain the experts also need to make sure that their instructions are adequate.