Keeping up with the subject of electronic discovery is a lot like following the latest developments in the lives of Britney Spears or Lindsay Lohan: every week a new story and never good news. But just as we can live and learn vicariously through the missteps of the rich and famous, so can we learn from the facts through which the early years of electronic discovery jurisprudence is evolving. There have been hundreds of cases officially reported and/or discussed in the mainstream media since last December, when the amended Federal Rules of Civil Procedure became effective, but the decisions discussed below are particularly illustrative of the most prevalent issues confronting the management, collection and production of electronically stored information (ESI).
The most overarching concern has to do with compliance with the general duty under Rule 26. The duty of a party to locate and produce all materials responsive to discovery and counsel’s oversight obligations are nothing new to the discovery process. What is new, brought on by the staggering volume of data and the complexities associated with their management, is the broad array of possible pitfalls and the ability to reveal mistakes and outright gamesmanship through the often inerasable trail of electronic evidence.
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