MATT DOW Jackson Walker L.L.P. February 14, 2007.

MATT DOW

Jackson Walker L.L.P.

February 14, 2007

The Plaintiff’s Practical Guide to E-Discovery (2005), by Craig Ball

• Electronic Discovery is “the single greatest litigation advantage for plaintiffs’ counsel willing to learn the ropes and aggressively assert their clients’ rights.”

• “Your opponent may be a courtroom whiz, but if he or she has a tenuous grasp of computer systems or doesn’t understand his or her client’s devices and data, defense counsel can’t give sound guidance about preserving digital evidence or pose the right questions to knowledgeable IT personnel.”

Plaintiffs’ Strategy

• Warn defense counsel of broad duty to preserve at the outset of the case

• File motion for a preservation order• Take Rule 30(b)(6) deposition of a hands-on IT

employee• Propound detailed, tailored RFPs• File motions to compel and for sanctions

Plaintiffs’ Goal

• Create the perception that the defendant is spoliating ESI because it’s hiding something

• Increase costs for the defendant• Avoid cost-shifting• Create a side-show that takes focus away from the

merits of the case

Consequences

Trap for the unwaryAdvantage: lawyers who understand the issuesAdvantage: clients with document retention

programs that are followedMore cases will settle earlyMore cases will be filedAll will have a better understanding of the merits of

the case at an earlier stage of the litigation

Sanctions for Failure to Implement a Litigation Hold

• 3M Innovative Props. Co. v. Tomar Elecs., 2006 WL 2670038 (D. Minn. Sept. 18, 2006)

• Transgressions: In addition to other misconduct, the defendant “failed to implement a company-wide litigation hold on relevant documents. Employees . . . continued to delete documents, including email, after the litigation commenced.”

• Sanctions: Included an adverse inference jury instruction, with respect to the email and other documents destroyed or withheld by defendant, that these documents support plaintiff’s claims and are unfavorable to defendant’s defenses.