As deputy general counsel, an adjunct professor and distinguished lecturer who teaches Electronic Discovery, Digital Evidence, & Computer Forensics, one of the most common questions I get from in-house counsel and law students alike is, “How do I reduce the risk of e-discovery sanctions?” My answer is simple: It's best to begin by collecting and preserving all potentially relevant electronically stored information (ESI) because that is how you eliminate 80 percent of the sanction risks.

The key aspect to the 2006 amendments to the Federal Rules of Civil Procedure (the Rules) is the duty to preserve ESI. The Rules instruct parties to preserve, discuss and plan for ESI, in many cases before litigation actually begins. A party's failure to meet its duty of preservation often will result in sanctions, including payment of costs, adverse inference instructions, default judgments or dismissals.

To determine whether such sanctions are warranted, courts have used the following test: