In recent years, the growth of discovery involving electronic data has changed the face of litigation. Businesses today face the daunting task of managing and maintaining electronically stored information (ESI) generated by the ever-growing use of technology. The volume of ESI can create an acute problem when discovery obligations arise either before or during litigation.
Failures by companies to adequately manage their ESI and the lack of clarity in procedural rules have sometimes resulted in substantial penalties. On the more severe side, such penalties and sanctions include adverse inference instructions when a party destroys evidence; entry of default judgment against the party who destroyed evidence; exclusion of evidence; and, the court’s informing the jury of discovery abuses during the punitive damages phase of a trial. Lesser penalties and sanctions include an award of costs and attorney’s fees for bringing of a motion for sanctions (the most common sanction), and additional monetary sanctions for discovery abuse. These types of sanctions are by no means exhaustive as to what might occur if evidence is not produced or destroyed. The courts have broad discretion in determining what sanction might be appropriate, and sanctions and penalties run the gamut.
Our team of attorneys consult with clients to provide a full range of services, including:
- Advice on records management and retention policies and procedures, including innovative techniques for implementation of litigation holds when electronic information is involved;
- Assistance in developing ESI maps to ensure that litigation holds can be properly implemented and all discoverable data that needs to be produced is found;
- Advice on the laws concerning the company’s and employees’ privacy rights and information theft;
- Advice on how to prepare and respond to RFIs (requests for information) dealing with e-discovery issues and capabilities, including the review and response to third-party subpoenas;
- Developing customized discovery motions to respond to discovery requests;
- Facilitation of appropriate relationships with e-discovery vendors for document retrieval and production;
- Coordinating the electronic discovery process with all of the key parties, including IT personnel, in-house counsel, e-discovery vendors, and outside co-counsel for cases pending in other jurisdictions; and
- Advice on ESI germane to specialty practice areas, such as Chapter 11 reorganization cases and bankruptcy litigation matters.
Thompson & Knight’s attorneys regularly handle complex litigation involving sophisticated electronic discovery issues. We understand how to handle complicated discovery problems and can design defensible, cost-effective methods to meet discovery obligations. Our attorneys approach each case armed with extensive experience and the ability to create effective strategies for handling matters, allowing us to maximize our chances of obtaining positive results for our clients.
Equally important, our experience has taught us that much of the high cost of electronic discovery can be avoided with effective information management and retention policies and procedures. Businesses need these policies and procedures to ensure that relevant, business-oriented information is maintained securely and can be retrieved quickly. Policies and procedures also should be designed to ensure that irrelevant and unnecessary data is removed in a timely fashion, so that truly pertinent information can be located quickly with minimum cost.