Technology: Reduce your risk of e-discovery sanctions by 80 percent

http://ow.ly/6DUjE

Article by Patrick Zeller published by insidecounsel.com

This article provides insight on how to reduce the risk of sanctions for eDiscovery violations.  As the author states, "

To determine whether such sanctions are warranted, courts have used the following test:

1. Whether the party had an obligation to preserve the evidence at the time it was destroyed

2. Whether the evidence was destroyed with a “culpable state of mind”

3. Whether the destroyed evidence was “relevant” to the party’s claim or defense (Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004))

Therefore, if a party has a defensible, repeatable process to collect and preserve potentially relevant information from getting destroyed once the duty to preserve arises, it will substantially reduce or eliminate its potential risk for sanctions. The most prevalent sanctionable conduct related to e-discovery is the failure to preserve ESI."

The author goes on to advise, "It’s important to keep in mind that whoever does your ESI searches and collections will need to testify, so ensure that they have the necessary training and certifications (some well-established certifications include the EnCE and EnCEP). Second, you need an in-house process with early case assessment (ECA) capabilities.

Specifically, these ECA capabilities should allow you to test, search and sample keywords, file types, dates, times and other criteria before you collect data. A true pre-collection ECA capability also will allow your lawyers to collaborate with IT professionals to determine what data they truly need to collect. Doing so will allow you to test and sample your environment, and it will better arm your lawyers for their meet-and-confer conference with opposing counsel.

Third, your in-house process needs to search, collect and preserve ESI without altering any metadata."

This article provides a nice overview of some means which can be employed to ensure that the eDiscovery process you are following is relying on established best practices.