Search

This paper reviews recent cases highlighting the unique role of inside and outside counsel in quality assurance for each stage of the electronic discovery process, and the willingness of courts to impose sanctions where a determination is made that counsel has not adequately ensured their clients have fulfilled discovery obligations. Parties and their counsel have been sanctioned for failing to identify and direct the thorough preservation of potentially relevant data; search the preserved data comprehensively using defensible methodology, and produce responsive data in a timely, usable, and complete manner. Reliance on internal IT personnel or enterprise level e-mail archiving and retrieval tools may be demanded by the client to manage the costs of electronic discovery, but counsel should be aware of the potential pitfalls. Practical tips are outlined regarding the types of 'reasonable efforts' that counsel may consider taking to fulfill their discovery obligations under US Federal Rule of Civil Procedure 26 and analogous US Securities and Exchange Commission rules. [ABSTRACT FROM AUTHOR]