In 2006, substantial amendments were made to the Federal Rules of Civil Procedure “to secure the just, speedy, and inexpensive determination” of discovery disputes involving electronically stored information. Ironically, however, it appears that the amendments have had the opposite effect. According to a recent study published in the Duke Law Journal, court sanctions arising from e-discovery disputes reached an all time high in 2009, with more sanctions being issued in 2009 than all years prior to 2005 combined. According to the study, the failure to produce electronic information was the most common basis for sanctions.
While the study does not offer solutions to these problems, it certainly highlights the complexity of managing e-discovery as the courts, businesses, and the legal community struggle to keep pace with advancements in technology. Despite these challenges, however, there are some pragmatic, preventative measures that businesses can follow to put themselves in the best position to handle e-discovery issues if and when litigation arises.
First, the best practice is for businesses to take steps to manage their electronic information before there is the prospect of litigation. It is often too late to effectively manage e-discovery after litigation has started, especially in cases involving corporations or businesses with multiple offices. As such, the general framework for being proactive in managing e-discovery should include the following:
- Develop a clear outline or map of your business’s computer infrastructure. Learn about the various sources and locations where electronic data may be stored on your system, including cell phones, tablets, laptops, desktops, servers, and backup disks or tapes.
- Establish data retention and destruction policies. The goal should be to reduce the amount of data that is stored over time and to keep only that which is necessary. These policies should be developed in coordination with your IT and legal professionals.
- Oversee and enforce these policies to ensure they are being followed and they are achieving the right balance between your needs for backup and the goal of keeping only what is necessary. Effective enforcement requires training supervisors about the policies and working with your IT professionals to monitor the storage of data.
- Continue to update and improve data retention and destruction policies over time. Proper management is not a one-time process, but a continual process that should be made a part of your regular business operations.
- Establish company policies to respond to litigation and potential e-discovery. These policies should instruct employees that they may not delete any relevant data once they are notified of a litigation hold. Supervisors should be trained on these policies to understand what a litigation hold is and how it must be communicated to and enforced among their employees.
Second, businesses must understand how to respond to e-discovery requests once litigation occurs. As soon as litigation is anticipated, businesses should work with legal counsel to identify all of the “key players” and potential witnesses, as well as all of the potential sources of electronic data (by reference to your outline discussed above), and issue a litigation hold instructing those individuals to preserve all potentially relevant evidence. Businesses must then continue working with legal counsel during the course of the litigation to ensure that this instruction is followed and that all potentially relevant evidence is, in fact, preserved. During the rest of the discovery process, it is important for businesses to understand that they have to comply and cannot simply avoid e-discovery even though it sometimes can be challenging or time consuming. While there can be limitations if an opposing party’s requests truly create an undue burden on your business, those decisions should be made in consultation with your legal counsel.