The Importance of Electronic Discovery

“E-Discovery has become the bête noire of litigation, and not without cause. Searching for electronically stored information (ESI) can be very expensive, and the consequences of not doing it correctly can be serious,” writes Geraldine Soat Brown in her piece, Reining in E-Discovery.

Few things have changed litigation more in past two decades as the 2006 United States Supreme Court amendment to the Federal Rules of Civil Procedure reflecting a pivotal change in discovery:  a classification for electronic records. While initially propelled from the rise of instant messages and word processed documents, today’s realm of “E-Discovery” is a world unto itself where nearly everything and anything, not only on a hard-drive, but in the cloud, can be called upon for production. From producing voicemail recordings to deposing IT managers, E-Discovery has emerged as a multi-billion dollar industry among its practitioners. Additionally, the rise of E-Discovery, from select specialized high profile cases to becoming an integral part of routine civil and criminal litigation, has engendered a separate body of Electronic Discovery law.

When it comes to managing E-Discovery in litigation, should a lawyer delegate this task to the client? According blogger and attorney Ralph Losey of the E-Discovery Team, relying on the client can go south quickly:

Bad things tend to happen when lawyers delegate e-discovery responsibility to their clients. As all informed lawyers know, lawyers have a duty to actively supervise their client’s preservation. They cannot just turn a blind eye; just send out written notices and forget it. Lawyers have an even higher duty to manage discovery, including search and production of electronic evidence. They cannot just turn e-discovery over to a client and then sign the response to the request for production.

What are the implications if your client or opposing council has “lost” the electronic information demanded for production? Federal Rule of Civil Procedure cites: “Absent exceptional circumstances, a court may not impose sanctions under the rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.  FRCP 37(e).”

However, this does not mean that is easy to skirt around production. For instance, Federal Rule of Civil Procedure 37(f) cites the following regarding the failure to participate in framing a Discovery Plan:  “If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.”

Rules are complicated – SmartRules are easy. To learn more about the Federal Rules of Civil Procedure pertaining to E-Discovery, visit


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