Barry J. Fleishman and Erica J. Dominitz on “The Perils of E-Discovery—Landmines for the Client and the Counsel”

Barry J. Fleishman and Erica J. Dominitz on “The Perils of E-Discovery—Landmines for the Client and the Counsel”

 

In their article appearing in the March/April 2010 issue of Coverage, "The Perils of E-Discovery-Landmines for the Client and the Counsel," Barry J. Fleishman and Erica J. Dominitz warn, "E-discovery case law makes clear that lawyers today must possess a fair amount of technological proficiency-or ... the good judgment to hire people who do-and the management skills to oversee their work." It is not new that whenever a party reasonably anticipates litigation, it has a duty to preserve, collect, review and produce relevant evidence. But today, parties and their counsel must work together to find such evidence that may reside on networks, including servers, hard drives, PDAs, thumb drives, and other devices.  Sanctions for noncompliance with discovery rules can be severe and lawyers, themselves, can ultimately be held responsible.  In addition, the article demonstrates that some judges define spoliation to include the negligent failure to preserve evidence as well as the intentional destruction of evidence. The article focuses on the opinions of Judge Scheindlin of the Southern District of New York in the cases of Zubulake v. UBS Warburg LLC and Pension Committee of the Univ. of Montreal Pension Plan v. Banc of Am. Secs. In the former case, Judge Scheindlin states the active role counsel must play in ensuring that the client's discovery obligations are met and in the latter case, she enunciates a framework for analyzing the legal principles applicable to spoliation disputes, which the article explores in detail. Moreover, the article identifies recent ethics rules and opinions of bar associations on the need for lawyers' technological competency with respect to electronic discovery and protection of their clients' confidentiality. Lastly, the article observes that e-discovery can be very costly and protracted e-discovery disputes even more costly. Abusive e-discovery conduct is a possibility. However, some (but not all) courts have allowed prevailing parties to recover their e-discovery costs under 28 U.S.C. § 1920.

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