E-Discovery Duties and the Range of Sanctions for Failures to Comply with Them

Why is it that every litigator must become conversant with the language and intricacies of electronically stored information (ESI)? And why is it that they should feel highly motivated to do so in a non-negligent manner? This article addresses these questions.

Attorneys know, of course, that the discovery of potentially relevant evidence is a standard part of every lawsuit. But what is new is that, within the last five years, it has been recognized that ESI comprises most of all potentially relevant evidence. It has been noted that even the smallest fender-benders can involve ESI; for example, if the driver was texting just before the crash. In such a case, the amount of ESI might be relatively small, but then again, the existence and timing of the texting might be critical. In anti-trust, securities, fraud, mass tort or employment class actions, and in trade secret and patent cases, the amount of ESI is different and can, in fact, be prodigious.