In Electronic Discovery, the Law Helps Those Who Help Themselves
It is axiomatic that the law helps those who help themselves. Perhaps nowhere is that truism more applicable than in the context of electronic discovery. The company that implements an effective information governance strategy – which includes developing an internal process for how it will address document productions in litigation – will likely avoid court sanctions and reduce its legal fees.
There are many recent examples of companies that defeated sanctions motions because they “got” information governance. They include the plaintiff manufacturer in E.I. du Pont de Nemours v. Kolon Industries (see http://bit.ly/kxMfyE) and the defendant bank in Viramontes v. U.S. Bancorp (see http://bit.ly/ij1RAI).
And just last week, a defendant hospital prevailed in a sanctions battle due to its effective litigation response effort. In Gaalla v. Citizens Medical Center (S.D. Tex. May 27, 2011), the plaintiff asked that default judgment be entered against the hospital for its alleged failure to preserve back-up tapes and snapshots of relevant email accounts. No sanctions were warranted, though. The hospital issued a timely litigation hold and preserved the relevant email accounts. Following Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 613 (S.D. Tex. 2010), the court held that the hospital’s preservation efforts were reasonable under the circumstances.
The Gaalla decision further highlights the importance of a company being proactive with its information governance. By preparing a litigation response effort and implementing procedures to address pre-litigation data proliferation, a company can store, manage and discover its information efficiently and cost effectively. It will reduce storage costs, eliminate data stockpiles and minimize litigation risks. And the law will help those companies in litigation since they took the initiative to help themselves. See Hannan v. Dusch, 153 S.E. 824, 831 (Va. 1930) (“The law helps those who help themselves, generally aids the vigilant, but rarely the sleeping, and never the acquiescent.”).