E-discovery sanction motions and awards have markedly increased every year since the 2006 amendments to the Federal Rules of Civil Procedure addressed ESI. Defendants are sanctioned three times as often as plaintiffs and the most common reason for sanctions is failure to preserve information. Unfortunately, there is no consensus as to what the standard should be for imposing e-discovery sanctions. Fortunately, under any standard, good intentions with detailed protocols that are consistently followed will bolster a defense against sanctions as the best evidence of an intention to make certain electronic information was responsibly managed. Consequently, outside counsel must aggressively and proactively prepare clients with an e-discovery readiness plan, long before a lawsuit has been filed and far in advance of any litigation hold.
In the June 2011 issue of the IADC Drug, Device and Biotechnology Committee's newsletter, Houston/Austin Partner Jeffrey Lilly outlined key pre-litigation hold steps that will help reduce the risk of later e-discovery sanctions, including:
? Investigate and analyze internal electronic systems
? Develop a comprehensive plan for day-to-day handling of e-information
? Audit auto-deletion systems
? Conduct periodic e-discovery fire drills
? Stay abreast of e-discovery law and related technology
Please click here to read Jeff Lilly's "Defending Against E-Discovery Sanctions Begins Yesterday."
About the IADC and the Drug, Device and Biotechnology Committee: The International Association of Defense Counsel serves an invitation-only membership of corporate and insurance defense lawyers dedicated to enhancing the development of skills, professionalism and camaraderie in the practice of law. The Committee is an educational and networking resource for in-house counsel employed by pharmaceutical, medical device and biotech manufacturers and the outside counsel who serve those companies.