While the British Petroleum leak in the Gulf is being plugged, legal claims from the oil spill are just starting to flow. The leak has resulted in an environmental and economic disaster, ruining countless lives and businesses -- not to mention the havoc that it has wreaked on wildlife and the sea. With the catastrophe, lawsuits by fishermen, business owners, and others have followed. Class actions and individual lawsuits have already been filed by major plaintiffs law firms competing for clients.
The outcome of these disputes will invariably depend on volumes of BP's vast stores of electronically stored information. Plaintiffs will attempt to obtain ESI relating to the cause of the leak and attempts to stem it, as well as e-mails between BP executives. This most likely involves hundred of thousands, if not millions of electronic records. It will necessitate dozens of decisions by the parties, with knowledge that the wrong decision could lead to significant sanctions for the failure to properly handle ESI. As one consultant recently asked: "Could the BP oil spill lead to an e-discovery disaster?"
Fortunately, few cases involve the stakes or the scope of the BP leak. However, the starting point for any case, whether it is the BP spill or a minor breach of contract, is to understand the rule of proportionality. Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure and §2031.060(f) of the California Code of Civil Procedure recognize that a party should not be compelled to spend more to comply with an ESI discovery request than the case is worth. A party needs to know what is needed to prosecute or defend its case, versus what it wants. Not every case allows you to compel the opposing side to preserve and produce every piece of ESI. The bottom line is to keep things in perspective. With this framework, consider these six factors while drafting e-discovery requests.
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Source: law.com
By: Fred Blum and Nader Mehdizadeh
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