Over the past several years, courts have issued numerous decisions on sanctions for spoliation exclusively involving electronically stored information issues. According to a Duke Law Journal article from spring 2011, 188 different federal district court judges have issued written decisions on e-discovery sanctions, and another 111 federal magistrate judges have written opinions. These numbers do not include 2010, which all commentators agree was a banner year for e-discovery spoliation sanctions.
It seems like every day we read about a new decision on this issue. As a result, there is a growing sentiment among clients and lawyers alike for preservation and over-collection. "Better to be careful than sorry" is the mantra. As a result, data management costs consume litigation budgets in the blink of an eye. Clients are being forced to settle cases because the ESI costs alone make it too expensive to fight. And, all the while, everyone lives in fear of the next big "spoliation" case.
Is this the end of litigation as we know it? No. Like it always does, the pendulum is swinging back. The future is targeted collections. Preservation is cheap; collection and review is incredibly expensive. Smart clients and lawyers will learn how to use targeted collections as the key to bringing sanity back to their litigation practices.
Normally, the typical ESI production works as follows: Clients receive notice of potential litigation. At this point clients must retain all potentially relevant data. However, they are faced with determining the difficult question of what is potentially relevant in many cases where there isn't even a lawsuit yet. So, they do what any other logical person would do; they cast a wide net to preserve as much as possible.
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Source: law.com
By: Dave Walton
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