The stakes for e-discovery are getting higher all the time. Exploding data amounts. Different sources and types of information. Shorter deadlines. Higher sanctions. Greater consequences for failure. With so many competing demands and runaway costs, getting a complete view of the e-discovery landscape in the midst of a lawsuit can be extremely difficult.
Several recent cases have shown how difficult it is to manage an effective e-discovery. In a 2008 opinion from the U.S. District Court for the Southern District of California, Qualcomm Inc. v Broadcom Corp., the judge found that Qualcomm attorneys deliberately withheld information from the defendant. The plaintiff was sanctioned $8 million. In his ruling, the judge referred to "red flags, which should have alerted the sanctioned attorneys to the fact that significant discovery gaps existed and further investigation was necessary."
And in a 2010 opinion in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York made it clear that the courts "have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed and produced to the opposing party." In this case, the plaintiffs accused of spoliating evidence didn't do it deliberately -- rather, they were "careless and indifferent" about e-discovery. The judge found that, of the 13 parties, seven were negligent and six were grossly negligent.
Good project management can help detect or avoid deliberate or inadvertent poor e-discovery practices. Project management techniques and expertise can help minimize costly mistakes and the wrath of the court. With the right people and processes involved, law firms and legal departments can develop e-discovery plans that are as cost-effective and predictable as possible.
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By: Pat McColloch