Receiving sanctions as a result of your discovery plan and forensic collection process may sound extreme or unlikely but that is not always the case. Courts are putting increased pressure on counsel to not only understand the discovery process but learn its nuances. Technological competence is increasingly being pushed to the forefront of the conversation; courts are no longer recommending it but are expecting it from counsel.
With that in mind, there are a few questions you can use as a roadmap to assess your process to identify if you might be opening yourself up to downstream issues and worst-case sanctions.
- Has any of the electronically stored information (ESI) been lost? Consider both on the surface level but also in the metadata, hash-values, and other structured.
- Was the ESI collected forensically and competently? Is there any missing or lost ESI due to how collections were handled? Engage in data-mapping prior to collections, by understanding your landscape you can collect both searchable data but also flat / non-structured files such as attachments that may have been missed.
- Was there an expectation for the missing or lost ESI to have been preserved? Was there a data preservation plan in place during the legal hold process? Lack of a clear and concise plan inherently opens you up to gaps in your collection.
- Is there an ability to restore, recover, and replace the missing ESI? If not, was there intent to deprive surrounding the ESI?
- Did the counsel or party take reasonable and defensible steps in the data collection process?
When considering missing or lost ESI and the imposing of sanctions there are two questions that should be asked at each stage. Did prejudice occur as a result of the loss, and was there intent to deprive?
Take-away: Sanctions around eDiscovery don’t happen often, but that doesn’t mean they don’t occur. Proper handling, preservation, & production of ESI during the discovery process should be of top concern. Through assessing your process pro-actively and continuously you are able to reduce the chance of facing any of the aforementioned issues while also streamlining your eDiscovery.