As deputy general counsel, an adjunct professor and distinguished lecturer who teaches Electronic Discovery, Digital Evidence, & Computer Forensics, one of the most common questions I get from in-house counsel and law students alike is, “How do I reduce the risk of e-discovery sanctions?” My answer is simple: It’s best to begin by collecting and preserving all potentially relevant electronically stored information (ESI) because that is how you eliminate 80 percent of the sanction risks.
The key aspect to the 2006 amendments to the Federal Rules of Civil Procedure (the Rules) is the duty to preserve ESI. The Rules instruct parties to preserve, discuss and plan for ESI, in many cases before litigation actually begins. A party’s failure to meet its duty of preservation often will result in sanctions, including payment of costs, adverse inference instructions, default judgments or dismissals.
It’s important to keep in mind that whoever does your ESI searches and collections will need to testify, so ensure that they have the necessary training and certifications (some well-established certifications include the EnCE and EnCEP). Second, you need an in-house process with early case assessment (ECA) capabilities.
Specifically, these ECA capabilities should allow you to test, search and sample keywords, file types, dates, times and other criteria before you collect data. A true pre-collection ECA capability also will allow your lawyers to collaborate with IT professionals to determine what data they truly need to collect. Doing so will allow you to test and sample your environment, and it will better arm your lawyers for their meet-and-confer conference with opposing counsel.