Whenever e-discovery comes up, you can almost always count on the topic to include a discussion of sanctions. That's not an accident. There has been an uptick in both the volume of filings asking for discovery sanctions and orders granting those requests. And, for better or for worse, these trends don't seem to be at risk of abating.

The most common ground for these filings? A failure to take reasonable steps to preserve potentially relevant documents and data. Lawyers that aren't mindful of their preservation obligations may expose their clients, and themselves, to significant sanctions because they didn't take appropriate steps under the circumstances to ensure that potentially relevant information is preserved.

The best protection against the threat of sanctions is to institute a legal hold—i.e., to take prompt, affirmative, and reasonable steps to ensure that your client is properly preserving potentially relevant information. As you probably know, the legal hold starts with the prompt distribution of the eponymous legal hold memo. (Be careful not to think of this memo as the beginning and end—it's better to think of the legal hold not as a single box to be checked, but as a process that spans the life of any particular matter.)