Extract from Mike Quartararo’s article “You Know It’s Bad When The Court Decision Has A Table Of Contents: Part Deux”
Every once in a while, a court decision involving e-discovery issues comes along that is particularly instructive. I wrote about a similar case here about 18 months ago. The outcome was not good then; if possible, this one is worse.
Striking are the common themes that run through cases like this. In fact, during my 20-plus years in e-discovery, it has been my experience that in every case in which e-discovery processes have gone off the rails, it is almost always in the early stages that counsel or the client make mistakes.
For the unenlightened, any time a litigation or investigation event is anticipated, is threatened, or actually commences, parties and their counsel have an obligation to preserve information, including electronically stored information (ESI) that may be relevant to the claims and defenses in the case. That’s the rule. And it’s pretty simple.
Why, then, do we continue to read about horrific circumstances in which the elemental failure to implement a legal hold jeopardizes what, by all accounts, is a legitimate suit (or countersuit, as the case may be)?