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Symantec eDiscovery

Showing posts tagged with Litigation Response
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Sanctions – Putting Teeth into Your Litigation Response Effort
pfavro | 20 Jun 2011 | 0 comments

Do you think the risk of discovery sanctions is overblown?

For litigants who became “newsworthy” because they were sanctioned, the answer is no. 

But many organizations observe their discovery obligations as if sanctions were no threat at all.  They feel little incentive to implement a process that will have the company prepared for litigation.  http://bit.ly/jjWNR6  Worse, there are others who view discovery misconduct – e.g., refusals to produce documents in response to requests or orders – as “tactically advantageous.”  See Lee v. Max Intern., LLC, --- F.3d --- (10th Cir. 2011), http://bit.ly/kg4n6L.  Whether intentional or inadvertent, such conduct unreasonably lengthens the litigation process and increases the expense for all involved.  It also belies the mandate from Federal Rule 1 to discover efficiently...

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Observing Best Practices for Your Litigation Response Effort
pfavro | 14 Jun 2011 | 0 comments

Is your organization adequately prepared for a lawsuit?  Or are you still trying to develop an internal process for addressing document productions in litigation?

Preparing a litigation response effort is an essential aspect of a company’s information governance plan.  Failing to take the initiative in this regard often leads to higher legal costs and increased risks during litigation.  The Vieste, LLC v. Hill Redwood Development (N.D. Ca. June 6, 2011) case from last week is particularly instructive on this issue.

In Vieste, the court sanctioned several real estate developers for submitting inadequate declarations regarding their document preservation efforts.  Those declarations reveal an overall failure to prepare for litigation.  Among other things, the defendant developers did not issue a litigation hold; did not suspend the overwrite function of one of their computer systems; and waited several months to contact...

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In Electronic Discovery, the Law Helps Those Who Help Themselves
pfavro | 06 Jun 2011 | 0 comments

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....

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The Uncertain Landscape for National eDiscovery Standards
pfavro | 16 May 2011 | 0 comments

Last year’s landmark opinion in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, 685 F.Supp.2d 456 (S.D.N.Y. 2010) was heralded as an eDiscovery gold standard.  Following the Zubulake cases, Pension Committee established bright line rules on data retention, litigation response efforts and sanctions.  Such rules, in turn, strengthened the call for additional eDiscovery standards that were not addressed by the 2006 amendments to the Federal Rules of Civil Procedure.

Despite the impact of Pension Committee on eDiscovery practice and jurisprudence, subsequent case law reveals the difficulty in crafting national eDiscovery standards.  Several courts have declined to follow the Pension Committee rubric, particularly as it relates to litigation holds.  Indeed, over the past three weeks, three different courts have distinguished the sweeping Pension Committee...

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