How to Prepare for E-Discovery Supplementation Obligations

http://ow.ly/apytO

An article by Ross Cunningham appearing on the Texas Lawyer, and also on law.com on the LTN webpage.

The article discusses ongoing eDiscovery obligations under Texas and Federal law, that go beyond the initial meet and confer, and the initial judges conference.

The article states, "More often than not, in 2012, attorneys come to a Rule 26(f) conference prepared. They know a client's information technology infrastructure; they know that asking for backup tapes can sometimes be more of a curse than a blessing; and they even know that discussions about cost-shifting in production of information should occur on the front end of the case rather than the back end.

Despite all of this, attorneys continue to fall well short of the mark in completing the e-discovery process. Much like the dieter on New Year's Day, attorneys approach a new case with the best of intentions of searching for and producing ESI. They make the initial inquiry and make their initial good-faith production.

However, six months to a year into the process, most lawyers forget a key obligation. Under Texas and federal rules, all parties have an ongoing duty to supplement discovery responses. This means an ongoing duty to verify continued implementation of the litigation hold. This means an ongoing duty to search custodians for additional responsive information. This means an ongoing duty to update searches on servers, phones, and other ESI sources. A failure to supplement can mean missing out on key evidence -- or even the imposition of sanctions."

The article goes on to look at specific obligations that must be fulfilled by counsel in order to avoid possible sanctions.