Electronic discovery and evidence are becoming the real game in town when it comes to discovery in civil cases. Indeed, according to a recent study, e-discovery law is developing in jurisdictions across the country, and 2009 saw twice as many judicial opinions issued on e-discovery issues than 2008.
And of potential concern to counsel and clients, practically half of these e-discovery opinions addressed sanctions, with sanctions being levied in 70% of those cases. Obviously, it is imperative that clients have their e-discovery houses in order; and that they retain counsel who are knowledgeable, skilled and proactive in this fast-developing and important area of the law. The study, the 2009 year-end update on e-discovery trends by Gibson, Dunn & Crutcher LLP, reveals various interesting findings. For example, courts are providing greater guidance when it comes to the duty to preserve electronic evidence. In addition, judges are motivating parties and counsel more and more to try to engage in cooperative and agreed-upon approaches to e-discovery. Furthermore, e-discovery requirements are being applied to governmental entities as well as private parties and counsel.
But the arena of sanctions has been where judges really have weighed in on e-discovery and potential abuses.
In 53% of the e-discovery sanctions cases, the costs and fees relating to the discovery issue in dispute were awarded. And in some of those cases, counsel was sanctioned in addition to the sanctioned parties. Also, some cases have held that both outside and in-house counsel are responsible for proper compliance with e-discovery obligations.
Courts also are awarding more severe e-discovery sanctions. Adverse evidentiary inferences were adjudicated in some cases while evidence preclusion sanctions were issued in others. And significantly, litigation termination sanctions were levied in cases where e-discovery abuses were egregious; such as where a party knowingly destroyed electronic information, or made knowing misrepresentations about the existence of relevant electronic data.
Judges are becoming more savvy when it comes to electronic data and discovery issues. As result they are armed with knowledge and they are becoming less tolerant of abuses of the e-discovery process. Therefore, the old adage "don't screw up" applies to e-discovery compliance now more than ever. Not only can sanctions for non-compliance be severe, e-discovery motion practice can take on a life of its own and can be very expensive.
- e-Discovery 101 for the In-House Attorney (FindLaw's In House Blog)
- E-Discovery: Who Pays The Freight? (FindLaw's Technologist Blog)
- States Embrace Electronic Discovery (FindLaw's Technologist Blog)
This article first appeared in Find Law.