More Trends in eDiscovery

In an earlier blog, we discussed an article by Alan S. Naar published in ACC (Association of Corporate Counsel) on the need for companies to create a document retention policy that ensures Discovery compliance. Here are some additional interesting trends in eDiscovery that Naar pointed to:

• Emergence of “Notification of a Litigation Hold” Discussions.

Some courts in fact require lawyers to confer with one another regarding how ESI is to be shared. Not only are there more lawyer-to-lawyer discussions (more on this below), but also lawyer-to-client and lawyer-to-court discussions on ESI.

• More Lawyer Cooperation (Yes, Really.)

When necessary, lawyers are adversarial because that’s the basis of the court system – and it has to be that way. However, ESI issues, by their nature, can encourage lawyers to confer and develop feasible plans (ones that won’t bankrupt either party’s great grandchildren or have the case drag on until the sun goes supernova). Truly, when lawyers and their clients realize the monstrous nature of ESI and how expensive it can be, it forces them to re-think their requests and to find ways to be more reasonable in their demands.

We’re not saying that lawyers will go on picnics and swap recipes. But when they realize that there is more than one way to win a case involvingeDiscovery, they can find solutions that “nobody is truly happy with” (which is lawyer code for: ideal).

• New “Smoking Guns” of Litigation

As all lawyers know (and either dream about or dread), the “smoking gun” in eDiscovery is that one email or document that dramatically alters the course of litigation…one way or another. However, this is really more the exception than the norm. The new smoking guns of litigation, according to Naar, are tied to ESI, ESI costs, and the destruction or deletion of key documents. The courts have shown an increasing willingness to sanction corporations and employees for failing to protect data and information, even if “gross negligence” is not proved or even alleged.

As is clear, eDiscovery is changing the legal landscape – by transforming existing issues, and creating new ones. Understanding the trends and figuring out how to make them work is a priority for lawyers, corporations…and eventually, one might imagine, everyone who depends on electronic data in one form or other.

Which, at last count, was everyone. (And their pets.)