Judges to e-Discovery Attorneys: ‘Too Bad, So Sad!’

j0386224“Courts Unsympathetic to Electronic Discovery Ignorance or

Those were the words glaring back at me from my January 2009 issue of Kroll Ontrack’s Case Law Update and E-Discovery News Practice Points section.  It goes on to state (emphasis added):

“This past year highlighted a major trend in cases concerning issues involving the exchange of electronically stored data: an increase in judicial unwillingness to display compassion or tolerance for negligent e-discovery blunders. Courts are increasingly imposing sanctions for discovery misconduct and for the failure to properly preserve and produce electronically stored information (ESI). In fact, of the approximately 138 reported electronic discovery opinions issued from Jan. 1, 2008 to Oct. 31, 2008, over half addressed court-ordered sanctions, data production, and preservation and spoliation issues. A rough breakdown of the issues involved in these cases is as follows:

–  25% of cases
addressed sanctions.

–  20% of cases
addressed various production considerations.

–  13% of cases
addressed preservation and spoliation issues.

–  12% of cases
addressed computer forensics protocols and experts.

–  11% of cases
addressed discoverability and admissibility issues.

–  7% of cases
addressed privilege considerations and waivers.

–  7% of cases
addressed various procedural issues.

–  6% of cases
addressed cost considerations.”

Roughly one in four cases involving e-discovery resulted in sanctions?  Stunning!  I’m going to assume that my readers don’t intend to commit misconduct, so let’s talk about ‘ignorance’.

j0386152Based on the conversations I’ve been having lately, a lot of attorneys don’t even know there’s a standard, yet.  Well, if you don’t, here it is:

Courts presume (expect) a level of competence in e-discovery.  Great.  How do they determine the level?  Unfortunately, that’s the slippery slope.  It’s being determined every day in courts throughout the nation.  The Court expects that if you don’t possess the knowledge, you’ll find someone who does, and if you fail to do so, you’re going to be liable.

Cases?  Where do I start?  “…willfulness is relevant to the severity of
sanctions imposed, but not to whether sanctions should be imposed.” (Italics added)  Barnett v. Simmons, 2008 WL 4853360 (Okla. Nov. 10, 2008)

This goes to the heart of why I created e-Discovery Insights in the first place.  Any reasonable person understands that when you have new rules, there’ll always be latitude for a time until everyone comes up to speed.  That time is over.  Long over.  The Judiciary is telling us that they’ve had enough and are starting to lose patience with parties who flout the rules, and – like it or not – in many cases they’re completely justified.

You do not want to be in front of a judge who has lost their patience.  Been there, done that.  We’ve already seen the monetary sanctions, but one of these days, an attorney is going to either be suspended or disbarred over an e-discovery foul-up.  Don’t be the first.

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