The Search for a Cure for E-Discovery Addiction

Poor information governance practices placed businesses on a collision course with long-standing discovery practices, leading to an inflection point in 2003, when the first of many holdings that resulted in sanctions and significant awards was issued based on e-discovery failings. Organizations began spending massive sums of money to retain information on the off chance that they might face a lawsuit.

The process that led to the adoption of the 2015 amendments to the Federal Rules of Civil Procedure began, in part, to control the costs and burdens of “over-preservation.” The amendment to FRCP 37(e) is arguably the most consequential. It requires a showing of specific intent to deprive an adversary before “death penalty” sanctions can be ordered. It also clarified that if data was lost after “reasonable steps” had been taken to preserve possibly relevant data, no sanctions measures can be ordered.

The 2015 Rule amendments have facilitated the early stages of an e-discovery overhaul. Real change, however, requires adapting to emerging technologies in the discovery process, and a change in philosophy on what constitutes adequate production. In the interim, general counsel should take advantage of the tools currently available. Do not agree to overproduce. Enact reasonable preservation practices that do not break the bank. Rule 37(e) allows a court to act only when necessary to cure prejudice, unless there was an intent to deprive. Finally, make sure to suggest using electronic review methods in appropriate situations.