E-discovery: Using an early conference to prevent later claims

http://ow.ly/bNReX

An article by Alvin Lindsay posted on the insidecounsel.com website.

This article discusses initial conferences in Federal litigation, and the importance they serve for the discovery process.

The article states, "The drafters understood that many of the most significant early e-discovery sanction cases involved problems that occurred at or near the time of trial. As the committee notes to the amendments state: “failure to address preservation issues early in the litigation increases uncertainty and raises a risk of disputes.”

If, on the other hand, a party clearly provides the other side with information such as the names of key players whose data will be preserved, the date ranges of preservation and whether or not backup tapes or legacy systems will be preserved and searched, the onus will shift to the other side to object if they find that deficient. Absent a negotiated solution, parties can then ask the court to resolve the issues before the horse leaves the barn. That’s what the drafters intended."

The author further writes, "The key to these early communications is the unwritten and often unnoticed corollary, that such transparency will go a long way to demonstrate both that the producing party acted reasonably and that the complaining party waived any such claim in the event it attempts to assert (sometimes years later) that something more should have been done. Of course, parties who simply agree that they don’t “anticipate” e-discovery issues don’t have this option.

Thus, even if an initial conference is not required by rule, parties with substantial data troves who spell out early on exactly what is being done on the e-discovery front can greatly reduce cost and risk."