It should come as no surprise.  The tactic of pursuing sanctions for alleged e-discovery abuse has reached an all time high, as reported by the ABA Journal.  Corporations and their lawyers are facing the “gotcha game” for allegedly failing to preserve electronically stored information more than ever.  As a trend, more and more litigants have added standard spoliation questions to interrogatories, document demands and deposition outlines.  These questions seek information related to document retention policies and procedures, IT infrastructure and ESI storage locations, personnel responsible for document retention and preservation, litigation hold procedures and the efforts taken to preserve ESI.

The game is simple: seek overly broad preservation early – often before or at the time litigation is reasonably certain.  The unwary shrug off the demands for preservation or narrowly preserve limited relevant ESI.  As litigation unfolds, evidence is developed that witnesses and the corporation did not take their ESI preservation obligations seriously, interpreted the scope of preservation narrowly (permitting the destruction of other relevant ESI) or made mistakes that allegedly should have been prevented (like losing a key witness’s laptop).  The problem is compounded by the sheer volume of ESI in existence and the complexity of the computer systems used to store and access ESI.  Even worse, careful litigants can find themselves in the cross-hairs despite eminently reasonable efforts to preserve, collect and produce relevant data.

Summarizing the survey results reported in the ABA Journal, the Catalyst E-Discovery Blog reports:

Court-ordered sanctions for e-discovery abuses have reached an all-time high and are increasingly severe. Sanctions against counsel, while still uncommon, are also on the rise.

 

These are among the findings of a survey of e-discovery cases published in the December 2010 issue of the Duke Law Journal. The survey analyzes all 401 federal cases prior to Jan. 1, 2010, in which e-discovery sanctions were requested. Of those, it identifies 230 sanction awards. 

 

“There has been a significant increase in both motions and awards since 2004,” the authors conclude. They were found in all types of cases and all types of courts.

Neutralizing the “gotcha game” takes early diligence.  Corporations and outside counsel must take time early (and prior to threatened litigation if possible) to understand their IT infrastructure, determine how relevant information is stored and develop strategies for timely preservation.  When litigation is threatened, additional diligence is required to identify the defensible scope of relevant data and aggressively take steps to enforce preservation.  A written litigation hold and detailed documentation of preservation efforts are strongly recommended in light of cases like the Pension Committee in 2010.  When facing an unreasonable opponent, get a court involved as soon as practical. 

By implementing a defensible preservation strategy, corporations should be able to take the “gotcha game” off the table.  Worst case, the steps taken to document preservation efforts should avoid sanctions.  A little early diligence will go a long way to counter the current rise in spoliation sanctions as a tactic.

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