Did you know that Federal Rule 37(e) can really protect your organization from court sanctions?

The Rule 37(e) “safe harbor” provision shields organizations from sanctions when the ordinary, good faith operation of their automated computer systems causes email, archival data and other electronic information to be overwritten and destroyed.  Not without its critics, the safe harbor has empowered numerous litigants to defeat sanctions motions.

Those who have followed best practices for information governance have had the greatest success invoking the safe harbor’s protections.  Such practices include establishing and observing document retention policies.  The Kermode v. University of Mississippi Medical Center (S.D. Miss. July 1, 2011) decision is instructive on this...

The eDiscovery frenzy that has gripped the American legal system over the past decade has largely eluded our European counterparts.  This is due in large part to the broad and fastidious protections of European privacy laws.  Another reason is found in Europe’s narrower discovery rules, which forbid categorical document requests authorized by the Federal Rules of Civil Procedure.  The result is that many companies that operate in Europe may feel insulated from the need to implement eDiscovery-related information governance procedures.

Having a laissez-faire attitude toward information governance is troubling enough.  But taking no action to prepare for eDiscovery is worse.  That is especially the case for companies operating in Europe that maintain offices in the United States.  They may unwittingly fall into an “American style” discovery trap for unsuspecting litigants in foreign proceedings.  That discovery trap is 28 U....