e-Discovery: Thousand-Day Competency Countdown

By Joe Howie

Here are some links to sites that support the statements in the above paragraph:

Kroll Ontrack reports that “This past year highlighted a major trend in cases concerning issues involving the exchange of electronically stored data: an increase in judicial unwillingness to display compassion or tolerance for negligent e-discovery blunders. Courts are increasingly imposing sanctions for discovery misconduct and for the failure to properly preserve and produce electronically stored information (ESI). In fact, of the approximately 138 reported electronic discovery opinions issued from 1 Jan. 2008 to 31 Oct. 2008, over half addressed court-ordered sanctions, data production, and preservation and spoliation issues” (emphasis added; http://www.krollontrack.com/newsletters/clu_0109.html#2).

A 6 July 2009 post on DiscoveryResources.org indicated that “As evidenced by the Sedona Conference Cooperation Proclamation and the increase in e-discovery-related sanctions, judges are becoming more frustrated with e-discovery errors”(emphasis added, www.discoveryresources.org/library/case-law-and-rules/are-we-punishing-abuse-or-confusion/).

The trend is not limited to federal cases. State courts are also increasingly expecting e-Discovery to be conducted competently, see, e.g. “Delaware Chancery Homes In on EDD,” The National Law Journal, 16 June 2009, at http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202431475006.

Given the ever-increasing importance of e-Discovery and the ever-increasing scrutiny it’s receiving, law firms and corporations should be implementing documented processes for handling it. An article by Kristine L. Roberts, associate editor of Litigation News published by the ABA Section of Litigation “Litigation News Online” suggests developing checklists and standard discovery protocols, http://www.abanet.org/litigation/litigationnews/2008/may/0508_article_qualcomm.html.

A blog posting by Ralph Posey gives an excellent overview of checklists and their limitations and suggests where some checklists can be located: http://ralphlosey.wordpress.com/2008/05/04/aba-litigation-section-reacts-to-the-qualcomm-case-and-recommends-e-discovery-checklists/

This article appeared originally in the July 2009 ALSP Update, the monthly publication of the Association of Litigation Support Professionals and is reprinted with permission. Read more about this nonprofit membership organization at www.alsponline.org.