Investing to avoid the mere imputation of sanctionable eDiscovery conduct

http://ow.ly/bmX0o

An article by Chris Dale on his blog the e-Disclosure Information Project.

This article refers to another article by Jim Shook, Director in EMC’s eDiscovery and Compliance Field Practice, published on the Kazeon blog called Activating Your Information Management Shield.  Links to the referenced blog and article are provided in Mr. Dale's blog post.

Mr. Shook's article examined two cases as examples that illustrate what conduct will result in spoliation sanctions.

Mr. Dale writes, "The main takeaway from Jim Shook’s article, for me anyway, comes at the end, and applies even outside the rigourous (is that a nice neutral word for it?) context of US litigation. Jim puts it this way:

We all know that litigation holds are difficult to implement and are almost never perfect. Sometimes something bad actually does occur – a custodian is inadvertently omitted, a handful of emails are lost. But more often, nothing bad happens at all. Still, even in those cases it can be difficult (and time-consuming and expensive) to fight off the other side’s claim that something “must have been lost.” A good information management policy, with tools and education to enable it, can go a long way towards showing good faith and protecting your organization from harm.

The risk management exercise, in other words, involves more than just the prospect of actually being punished for eDiscovery defects, whether that involves US-style sanctions or an indemnity costs order as one might get in the UK. What does it cost to resist the imputation, and what wider implications might ensue?"

Mr. Dale goes on to look at issues that result in harm to a corporation that goes beyond simple metrics such as costs incurred.  Certainly there can be harm to a corporate image that can go well beyond the costs of sanctions, and the costs of the effort involved in complying with legal obligations.  It becomes more difficult to measure the true costs of not having proper legal hold and information governance practices in place, than to simply focus on the impact of court imposed sanctions.  However, issues such as the good will value of the corporation's name need to be considered as part of the overall damage that can be caused by failing to properly manage information.