A famous quote from intellectual George Santayana provides an appropriate backdrop for organizations to better understand why they should deploy technology to strengthen their litigation response effort. As Santayana explained in The Life of Reason: Reason in Common Sense, “[t]hose who cannot remember the past are condemned to repeat it.”
The “past” can be a powerful playbook in the game of eDiscovery. Fortunately for organizations, the lessons of eDiscovery history abound. Indeed, the decisions that courts issue every day across the United States and in other countries provide substantial guidance on what organizations should and should not do to properly prepare for the discovery phase of litigation.
One of the principal lessons that can be gleaned from American court cases in 2011 is that technology can help organizations address the demands of eDiscovery in litigation. Technology has assumed such a significant role because it facilitates the oversight process that lawyers must engage in to ensure that pertinent documents are preserved for discovery. This year alone, the failure to exercise that oversight has in many instances culminated in evidence destruction and sanctions.
That message was emphasized this summer by a Virginia based federal court in a hotly contested trade secret dispute. In E.I. du Pont de Nemours v. Kolon Industries (E.D. Va. July 21, 2011), the court determined that it would issue an adverse inference jury instruction against defendant Kolon Industries as a sanction for its evidence spoliation. The spoliation at issue occurred when Kolon deleted emails and other records relevant to DuPont’s trade secret claims. After being apprised of the lawsuit and then receiving multiple litigation hold notices, several Kolon executives and employees met together and identified emails and other documents that should be deleted. The ensuing destruction was staggering. Nearly 18,000 files and emails were deleted. Furthermore, many of these materials went right to the heart of DuPont’s claim that key aspects of its Kevlar© formula were allegedly misappropriated to improve Kolon’s competing product line.
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Source: clearwellsystems.com
By: Philip Favro
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1 comments:
The DuPont v. Kolon Industries case has a powerful message for organizations: deploy the right technology or else. This action is now in trial and the court has prepared an adverse inference instruction that is devastating for defendant Kolon Industries. Organizations do not have to suffer this same fate. Get the right technology in place to support your information governance strategy and you will be better prepared for litigation and discovery.
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