E-discovery practice in civil cases and government investigations has rapidly evolved since the onset of federal rules governing electronic discovery a little over a year ago. During its infancy, e-discovery was viewed as a costly but powerful tool that could generate “smoking gun” emails that would alter the outcome of cases. Just a few years ago, litigants were infrequently sanctioned for e-discovery failures, in part, because many judges gave litigants who botched e-discovery the benefit of the doubt and chalked up e-discovery mishaps to “the learning curve.” Those days are over.
Judicial tolerance for shortcomings in e-discovery is on the decline, and litigants, their counsel and e-discovery vendors are facing direct liability for such failures. As a result, sensibly managing e-discovery is critical not only to success in the underlying litigation but to minimizing the possibility that e-discovery failures will become a source of liability in and of themselves. Before reviewing some ways to minimize the risk that e-discovery failures will create liability, this article draws upon two recent and notable e-discovery disputes to show how liability can arise.
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