Why Corporate Defendants Should Embrace E-Discovery

The burden of preserving electronic information applies equally to defendants and plaintiffs. Defendants that have prepared in advance for e-discovery requests, and even those that haven’t, are well positioned to not only respond responsibly, but to use e-discovery to their advantage. While the costs of preserving, collecting, and producing e-data will almost always be significantly more for a corporate defendant, there are many ways e-discovery and the issues it raises can further a successful defense.

When plaintiffs use e-discovery requests as a weapon by making onerous and unreasonable requests, defendants should fire back immediately and aggressively pursue e-discovery issues, including whether and when litigation-related information has been discarded or manipulated. If a plaintiff has destroyed potentially relevant information after the incident at issue, the defense has a strong argument for an adverse inference. One advantage for defendants is that plaintiffs typically do not expect or prepare ahead of time to be plaintiffs, so they likely will not have a system in place to preserve data. Yet they are as much at risk of suffering consequences for the loss of critical evidence as a corporate defendant.

E-discovery law is developing in a way that encourages cooperation. With cooperation, the risk of monetary sanctions diminishes. Agreements can be written that may limit costs or spread them over time. If reasonable steps are agreed upon to protect privileged information, the amount of attorney review time is reduced. The potential for significant cost reduction makes cooperation advisable.