It’s your worst nightmare: the court has just issued a sanctions order in the company’s long-running case against a bitter competitor and not only is your client sanctioned, but you are personally charged with spoliation of evidence. How could this happen? You have thoughtfully considered all of the myriad sources of company data, designed a comprehensive data policy and issued litigation hold notices for the case, as discussed previously in this series. This column focuses on what can go wrong in litigation from a discovery perspective, with examples from federal cases around the country.
The comprehensive amendment of the Federal Rules of Civil Procedure (FRCP) in 2006, and states that have followed suit and amended discovery rules, reflect the growing importance and prevalence of electronically stored information (ESI) in litigation.