R + P by Tom Lahiff

Is proof of prejudice to the requesting party sufficient?

“I’m sorry/So sorry/Please accept my apology/”

As 2007 comes to close, corporate and outside counsel are grappling with one of the more difficult issues in e-discovery practice: What is the law regarding the imposition of discovery sanctions? Do courts require a culpable state-of-mind or is proof of prejudice to the requesting party sufficient? And, if prejudice alone is not enough to warrant sanctions, is negligence a sufficiently culpable state-of-mind? Adoption by the courts of either a prejudice or negligence standard would have a material adverse impact on both the risks and costs of e-discovery practice.

So, in an attempt to determine what the state of the law may be, and with profound apologies to Bill Safire (and Brenda Lee), R+P offers its readers a holiday gift: a one question Office Pool. (For 2008 we promise more questions and, if it is a really good year, prizes for the correct answers.)

Test your e-discovery awareness and answer the question that follows these quotes:

“Our interpretation of Supreme Court authority concerning a court’s inherent power to sanction counsels that a finding of bad faith is not always necessary to the court’s exercise of its inherent power to impose sanctions.”“[T]here must be a finding of intentional destruction indicating a desire to suppress the truth.”“We have never approved of giving an adverse inference instruction on the basis of pre-litigation destruction of evidence through a routine document retention policy on the basis of negligence alone.”

“Where a routine document retention policy has been followed in this context, we now clarify that there must be some indication of an intent to destroy the evidence for the purpose of obstructing or suppressing the truth in order to impose the sanction of an adverse inference instruction.”

“The prelitigation destruction of the voice tape in this combination of circumstances, though done pursuant to a routine retention policy, creates a sufficiently strong inference of an intent to destroy it for the purpose of suppressing evidence of the facts surrounding the operation of the train at the time of the accident.”

“Sanctioning the ongoing destruction of records during litigation and discovery by imposing an adverse inference instruction is supported by either the court’s inherent power of Rule 37 of the Federal Rules of Civil Procedure, even absent an explicit bad faith finding, and we conclude that the giving of an adverse inference instruction in these circumstances is not an abuse of discretion.”

 

Are these quotes from

Different Circuit Courts? Different District Courts?Different Judges?
The same opinion?

As you’ve probably already guessed, the six quotes are drawn from the same opinion: Stevenson v. Union Pac. R.R. Co., 354 F.3d 739 (8th Cir. 2004). Stevenson is a prime example of the confusion in many of the opinions discussing discovery sanctions. Despite some language in Stevenson that seems to require a finding of bad faith, in “Electronic Discovery Sanctions in the Twenty-First Century”, Judge Scheindlin and her co-author Kanchana Wangkeo cite the Eighth Circuit’s opinion as the lead case in a two-page string site supporting the proposition that “[a]ppellate courts have made clear that a finding of bad faith is not required to impose discovery sanctions”. 11 Mich. Telecomm. Tech. L. Rev. 71, 80 (2004) (footnote omitted) (emphasis added.) The language from Stevenson that Judge Scheindlin chose to support her conclusion that appellate courts do not require bad faith was the last quote above. (“Sanctioning the ongoing destruction ….”.)

Judge Scheindlin’s analysis in her article of all of the written opinions discussing sanctions between January 1, 2000, and the date of publication, including federal and state cases, was written in conjunction with the Civil Rules Advisory Committee’s consideration of the inaptly named “safe harbor provision” of the amended federal rules. The article remains the most extensive and coherent study of e-discovery sanctions. (A link to Judge Scheindlin’s article may be found in the “Other Resources” section of this blog.)

Judge Scheindlin concluded “we did not discover a single case where the court sanctioned a party solely for following its document retention and recycling policy; there was always another consideration … Courts tended to focus on the prejudice to the party seeking discovery, as well as on the spoliator’s culpable state of mind”. The trend, and almost certainly the majority view, is that prejudice plus negligence is a sufficient basis to impose sanctions, including an adverse inference instruction. Negligence, however, may not be sufficient for more severe sanctions such as preclusion or dismissal.

Despite Judge Scheindlin’s view, Stevenson continues to be cited by the Eighth Circuit as holding that spoliation sanctions require evidence of bad faith. In Greyhound Lines, Inc. v. Wade, 2007 WL 1189451 (8th Cir. 2007), the court (quoting Stevenson) held that “[a] spoliation-of-evidence sanction requires ‘a finding of intentional destruction indicating a desire to suppress the truth’”. Other courts have also found that bad faith is required before discovery sanctions are imposed. See, e.g., In re: Seroquel Products Liability Litigation, 2007 U.S. Dist. Lexis 61287 (August 21, 2007) (“A finding of bad faith, however, is required to impose sanctions based on the Court’s inherent power.”)

The preponderant view (that negligence is sufficient) is ably expressed by Judge Allegra of the Court of Claims in United Medical Supply Company, Inc. v. The United States, 77 Fed. Cl. 257 (Fed. Cl. 2007). Judge Allegra attempted what she called a “tour d’horizon” to determine whether a culpable state of mind was required before a court could impose sanctions pursuant either to its inherent power or Rule 37 of the Federal Rules of Civil Procedure. She found that “[t]here is, in fact, a division of authority among the circuits”, with a “distinct minority” requiring a showing of bad faith before “any form of sanction is applied at all”. (Emphasis added.) She then concluded “[g]uided by logic and considerable and growing precedent … an injured party need not demonstrate bad faith in order for the court to impose, under its inherent authority, spoliation sanctions.” (Emphasis added.)

It is worth taxing your patience to quote Judge Allegra at length:

Several reasons lead to this conclusion. For one thing, it makes little sense to talk of a general duty to preserve evidence if, in fact, the breach of that duty carries no real legal ramifications. Requiring a showing of bad faith as a precondition to the imposition of spoliation sanctions means that evidence may be destroyed willfully, or through gross negligence or even reckless disregard without any true consequences. … [T]his approach is tantamount to suggesting that the “duty” to preserve evidence is not much of a duty at all. Second, imposing sanctions only when a spoliator can be proven to have acted in bad faith defenestrates three of the four purposes underlying such sanctions – to protect the integrity of the fact-finding process, to restore the adversarial balance between spoliator and the prejudiced party, and to deter future misconduct – and severely frustrates the last, to punish. These objectives are hardly served if the court, in effect, is constrained to say to the injured party—‘sorry about that, but there is nothing I can do, except to let you present your case, such as it remains. Indeed while some commentators have asserted otherwise, the history of the spoliation doctrine suggests that it was not designed solely to punish those who consciously destroy inculpatory documents, but also to address the manifest unfairness inherent in the loss of relevant evidence. Even if such sanctions were once rooted in an inference of consciousness of a weak case, that is neither the controlling rationale nor the prevailing rule nowadays.

(Footnotes and citations omitted; emphasis added.)

Judge Allegra’s view is shared by the Second Circuit. In Residential Funding v. DeGeorge Financial Corp. , 306 F.3d 99 (2nd Cir. 2002), the court quoted Magistrate Judge Francis approvingly:

“[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss.”

(Quoting from Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991).)

Contrary to some speculation it does not appear that the courts are willing to go so far as to impose sanctions in the absence of at least negligent conduct. However, conduct that might once have been considered innocent is being defined as negligent. As the availability and adoption of web-based legal holds systems increases and more and more companies implement and enforce policies to suspend records management schedules it will become increasingly difficult to argue that the failure to preserve information in response to actual or anticipated litigation was anything other than negligence.

Preservation Triggers

Whether or not the Stevenson court’s view ever becomes more than a minority position, its analysis of preservation triggers and a party’s obligation to suspend the routine operation of a document retention policy is of more than passing interest to e-discovery practitioners. Stevenson involved a car-train grade crossing accident. Plaintiffs alleged that the train crew did not properly sound the horn and that vegetation at the crossing blocked their view of the train as it approached the crossing. Pursuant to separate document retention policies Union Pacific destroyed (i) the tape of radio communications between the train crew and the dispatchers on the date of the accident and (ii) all track maintenance records just before the accident.

The collision occurred on November 6, 1998; the complaint was filed on September 20, 1999. Plaintiffs’ document demand was filed on October 25, 1999, but was not received by Union Pacific until November 17, 1999. Within 90 days of the accident, sometime around February 1999, and well before Union Pacific had “actual knowledge that litigation was imminent”, the tapes were overwritten, pursuant to Union Pacific’s 90-day tape retention policy. Despite the pendency of the lawsuit and the receipt of a document demand, Union Pacific destroyed the track maintenance records pursuant to its routine one year document retention policy. (The exact date is not clear from the opinion.)

The Eighth Circuit found that although destruction of the voice tapes “test[ed] the limits of what we are able to uphold as a bad faith determination, the district court did not abuse its discretion by sanctioning Union Pacific’s prelitigation conduct of destroying the voice tape”. The circuit found that the district court’s bad faith determination was supported by the following facts:

Union Pacific knew that “litigation is frequent when there has been an accident involving death or serious injury”. Union Pacific had “general knowledge that such tapes would be important to any litigation over an accident that resulted in serious injury or death”.The only “contemporaneous recording of conversations at the time of the accident will always be highly relevant to potential litigation over the accident”.

Union Pacific’s general knowledge “weighs heavier than its lack of actual knowledge that litigation was imminent”.

Union Pacific preserved voice tapes in other cases where tapes proved to be beneficial.

Union Pacific “made an immediate effort to preserve other types of evidence”.

Although there was no evidence that the voice tape contained information that could be classified as a smoking gun, the court held that the loss of the tape was prejudicial to plaintiffs. (It is easy to conceive that under these facts another court would have no trouble finding that these facts constituted bad faith.)

As to the track maintenance records, Union Pacific argued that corporate counsel’s failure to secure the tapes was innocent because (i) he didn’t know the track maintenance records were relevant since he had never before managed litigation involving a grade crossing collision, (ii) he didn’t know where the records were kept, and (iii) he was distracted by a derailment and his vacation. Even though Union Pacific was found not to have acted in bad faith because it was not put on notice that the track records should be preserved until almost a year after the accident, and even though “the condition of the track was not formally at issue until the second amendment to the complaint in May 2000”, almost 18 months after the accident, the court found that an adverse inference instruction was not an abuse of discretion.

For e-discovery practitioners the important conclusion to draw is that, whatever state of mind is required to sustain the imposition of sanctions, courts are likely to find that the failure to suspend a document retention program and to preserve evidence warrants sanctions if a company is aware that litigation is reasonably likely in a given set of facts even if it lacks actual knowledge that litigation is imminent.

Unlike most of us who enjoyed our turkey dinners, counsel for the federal government had few reasons to celebrate Thanksgiving. In two reported decisions – one on each coast – federal district courts issued broadly worded orders requiring government defendants to preserve evidence. Both courts were responding to allegations in motions filed by public interest plaintiffs that loss or destruction of data was possible.

On the East Coast Judge Kennedy, adopting the report and recommendations of Magistrate Judge Facciola, ordered defendants to “preserve media, no matter how described, presently in their possession or under their custody or control, that were created with the intention of preserving data in the event of its inadvertent destruction”. In addition, the court ordered defendants to “preserve the media under conditions that will permit their eventual use, if necessary… .” Citizens for Responsibility and Ethics in Washington v. Executive Office of the President, Civ. No. 07-01707-HHK) (D.D.C. Nov. 12, 2007).

A few days earlier on the West Coast, Chief Judge Walker ordered defendants to “preserve all evidence that may be relevant to this action” and extended the preservation duty to evidence that might be in the hands of non-parties “who possess materials reasonably anticipated to be subject to discovery in this action”. Counsel were ordered to “exercise efforts to identify and notify such non-parties, including employees of corporate or institutional parties” and to submit to the court “under seal and pursuant to FRCP 11, a statement” that they had inquired of their clients that the routine “destruction, recycling, relocation, or mutation of such materials” had been halted or that duplicates or copies suitable for discovery had been made. In re National Security Agency Telecommunications Records Litigation, MDL 06-1791 (VRW) (N.D. Cal.Nov. 6, 2007).

CREW and NSA are both highly charged political cases, so it remains to be seen if in the ordinary civil case (a matter, as Judge Facciola described it during a hearing on the motion in CREW, involving “Suzie Smith against Joe Blow”), a court would enter an order with such far reaching and burdensome obligations. It is possible that the government’s reluctance in both matters to enter into stipulations regarding the preservation of evidence was a factor behind the decisions to enter the broadly worded preservation orders. Perhaps even more significantly, the CREW plaintiffs had alleged that e-mails had been deleted, and Judge Facciola found that “backup media are the only place where they may be and the obliteration of this backup media obviously threatens CREW with irreparable harm”.

Counsel and IT Professionals Take Note

Beyond the scope of the material to be preserved, the portions of these two orders that should cause counsel (both corporate and retained) and IT departments to beware are the obligations (1) to preserve media under conditions that would permit its eventual use; (2) to communicate with non-parties, including the employees of corporate or institutional parties and to inform them of the obligation to preserve information; and (3) to submit a statement by “[t]he most senior lawyer or lead trial counsel representing each party” pursuant to Rule 11 the preservation obligations “ha[d] been carried out”.

Motion Practice

One interesting side bar is the remarkably different routes taken by each of the plaintiffs to bring the preservation issue before the courts. The CREW plaintiffs moved for a temporary restraining order, assuming the burden of the familiar standard for the award of a preliminary injunction. The NSA plaintiffs filed a simple motion for an order prohibiting the alteration or destruction of evidence. (Go here and here, the web sites of CREW and the Electronic Frontier Foundation, respectively, to read papers filed in support of the motions by plaintiffs and the transcript of the hearing before Judge Facciola in CREW.)

What is a Backup Tape?

Unlike the broader order in NSA, the CREW preservation order was limited to backup media. Judge Kennedy’s order does not contain the interesting material found in Magistrate Judge Facciola’s “Report and Recommendation”, and even Judge Facciola’s Report necessarily omits the fascinating detail in the transcript of the hearing on CREW’s motion. For counsel and IT staff the most interesting discussion during the hearing was the complete inability of the participants to agree on a definition of a “backup tape” and whether the government had any. Judge Facciola’s first question after greeting the parties was

“As I understand it – this is what confuses me – is the problem at this point and the difference between you, the difference between backup tapes and disaster recovery backup tapes? And, if so, what is the difference between those two things, if there is a difference.”

More than 25 pages later, including an amble down the deeply worn path of the standards for issuance of a TRO and a brief recess to allow the parties to attempt to reach a stipulation, the judge still did not have an answer to his question. But it was not for lack of trying. In an effort to help the parties at least agree on what they were discussing, Judge Facciola described his understanding of the backup process in his courthouse. (In brief, the routine removal of tapes by a third party vendor to offsite storage with eventual overwriting of tapes.)

This attempt did not advance the argument between the parties. Counsel for plaintiff continued to refer to disks, CD’s and DVD’s as possible backup media. Judge Facciola seemed to limit his definition of backup media to magnetic tapes, saying at one point, “CDs and DVDs, I agree — I think we all agree, do not fall within the definition of disaster recovery tapes”. Plaintiff seemed to limit the request to “backup media … use[d] to preserve data that can be used forensically for disaster recovery”. It is possible that the parties were confusing Exchange server backup tapes and media used in disaster recovery sites to recover and resume critical operations. But the terminological confusion was never resolved.

Stipulating to the Preservation of Evidence May Not Be Enough

The government in both matters offered to provide a declaration under penalty of perjury that it “would preserve and maintain the backup tapes or disaster recovery tapes that were in existence ….” But it was unwilling to enter into any stipulation that could form the basis for an order.

Judge Facciola found although “stipulations entered into between parties can save time and money, there is no obligation upon a party to accept one” and that “[u]nlike a court order, a declaration is not punishable by contempt. In other words, without such an order destruction of the backup media would be without consequence”. (He did not discuss the court’s power to impose sanctions for the destruction of evidence.)

In his Report, making clear his understanding of the media at the center of the dispute, Judge Facciola quoted the definition of backup from the Sedona Conference Glossary for E-Discovery and Digital Information Management (May 2005 Version): “to create a copy of data as a precaution against the loss or damage of the original data. Many users backup their files, and most computer networks utilize automatic backup software to make regular copies of some or all of the data on the network”. He then recommended that the trial court issue an order “to prevent the destruction of backup media”. Judge Facciola’s draft order was adopted by the trial court and extended to media in the possession, custody or control and “under conditions that will permit their eventual use, if necessary … .”

Turning to NSA, although Chief Judge Walker did not expressly order the defendants to preserve evidence under conditions that would permit its eventual use, he ordered that “[p]reservation is be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data and tangible things reasonably anticipated to be subject to discovery … .”

In his view

[p]reservation includes taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migrating, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible.

This would seem to be the same standard as CREW without language as direct.

Must Parties Notify Employees of Non-Parties With Access to Evidence That a Duty to Preserve Evidence Exists?

Judge Kennedy confirmed that the obligation to preserve evidence extended to information in the custody of a non-party but under the control of a party, for example backup tapes stored offsite in a facility owned by a non-party. Of more concern, however, is that Chief Judge Walker extended the preservation obligation to require an effort to communicate the existence of the obligation to non-parties: “[c]ounsel are under an obligation to exercise efforts to identify and notify such non-parties, including employees of corporate or institution parties”.

Conclusion

The orders issued in these two cases should be considered together as early signals of where courts may take the duty to preserve evidence in the face of allegations of potential spoliation.

We here at R+P have added a new blog to our roll. “Post Process: Everything to do with E-Discovery & ESI". This site covers the full range of e-discovery issues, with excerpts from and links to court decisions and articles. The author, using the nom de web rjbiii, identifies himself as a consultant with a BS in computer science and a JD. He has organized information on his site in a number of useful categories, including by circuit and district court, judge, topic, and specific rule of procedure or evidence.

Demand Letters and The Duty to Preserve Information

Two recent decisions by magistrate judges resolving motions for sanctions based on defendants’ discovery violations illustrate that (i) a party’s own conduct can inadvertently trigger an obligation to preserve, and (ii) unless a demand letter is specific regarding the possibility of litigation, a court might refuse to find that receipt of such a letter triggered an obligation to preserve. Google Inc. v. American Blind & Wallpaper Factory, Inc., 2007 WL 1848665 (N.D. Cal. June 27, 2007); Cache La Poudre Feeds, LLC. V. Land O’Lakes, Inc., 2007 WL 684001 (D. Colo. Mar. 2, 2007).

The decisions by Magistrate Judges Seeborg and Shaffer in Google and Cache, respectively, are rich sources of learning regarding preservation and production, but this post will focus on the demand letters sent by the parties before the litigation was filed or served. Future posts will cover other useful practice tips mined from the two decisions.

What? You Mean That Now I Have to Save Stuff?

Well, yes you do have to preserve information if you send a demand letter to a potential adversary. Indeed, depending on the circumstances, it may be that by sending a demand letter you may have imposed a duty on yourself without imposing a corresponding duty on the other side.

In Google the demand letter at issue was sent by the eventual defendant, American Blind. Not only did American Blind’s letter give Google a basis to file a declaratory judgment action at a time and in a forum convenient to Google, the company triggered an obligation to preserve its own documents and information relevant to the dispute. It was an obligation American Blind failed to discharge and did not even bother to contest.

In June of 2002 American Blind sent Google a “’cease and desist’ letter that portended litigation”. Some eighteen months later, in December of 2003, Google turned the tables on American Blind and served it with a complaint seeking declaratory relief.

After initial motion practice, the trial court found that a “justiciable controversy arose between the parties no later than June of 2002”, when American Blind sent a “cease and desist” letter to Google. Discovery by Google revealed that prior to May of 2006 – even after having been served with a complaint — American Blind had failed to preserve or collect information relevant to the dispute. In a subsequent motion to compel, Google alleged that this failure was the basis for “terminating, evidentiary, or monetary sanctions”.

On Google’s motion, the magistrate judge used the trial court’s earlier ruling on justiciability to support a factual finding that “American Blind’s duty to preserve relevant evidence arose not later than December of 2003, and likely arose some eighteen months earlier”, when the cease and desist letter was mailed by American Blind. The court imposed both evidentiary and monetary sanctions, holding that certain facts had been “judicially established” and fining American Blind $15,000.

I Guess We All Just Can’t Get Along

We can’t all just get along if we want our threats of litigation to be taken seriously.

In Cache, Plaintiff Cache argued that defendant Land O’Lakes should have anticipated litigation as early as April 4, 2002, when its outside counsel called Land O’Lakes’s general counsel and informed him that Cache had been using a particular trademark for at least ten years before Land O’Lakes started using it in about January 2002. Two months later, on June 5, 2002, Cache’s outside counsel followed up her April call with a letter repeating that Cache had been using the trademark for at least 10 years and expressing a concern that customers of both Cache and Land O’Lakes could be confused. In closing, Cache’s general counsel explained that the purpose of the letter was “’to clearly put [Land O’Lakes] on notice of our client’s trademark rights and clearly establish the opportunities we have given Land O’Lakes to avoid exposure. The second purpose of this letter is to determine whether this situation can be resolved without litigation and media exposure … We think you will agree that the company’s interests are best served by trying to resolve this unfortunate and difficult situation”.

A year later on June 3, 2003, Land O’Lakes’s outside counsel wrote to Cache’s outside counsel suggesting that the parties discuss the possibility of obtaining a consent to use the mark. Two weeks after receipt of the Land O’Lakes letter, on June 17, Cache’s outside counsel responded by expressing a concern over continued infringement, but indicating an interest in listening to a proposal. Not until February 24, 2004, almost eight months later, however, did Cache file a complaint. Cache subsequently brought a motion accusing Land O’Lakes of spoliation by failing to discontinue in April 2002 its practices of (i) automatically deleting e-mails older than 90 days and (ii) overwriting backup tapes.

The court found a number of flaws in Cache’s argument that the obligation to preserve was triggered in April 2002, focusing on Cache’s June 2002 letter. In the court’s view the letter did not threaten litigation; it did not demand that Land O’Lakes preserve potentially relevant information; and it raised the possibility that litigation was not the only solution to the dispute. The court also noted that the lawsuit was not filed until almost two years after the first telephone call in April 2002. The Magistrate Judge concluded that “a party’s duty to preserve evidence in advance of litigation must be predicated on something more than an equivocal statement of discontent, particularly when the discontent does not crystallize into litigation for nearly two years. Any other conclusion would confront a putative litigant with an intractable dilemma: either preserve voluminous records for an indefinite period at potentially great expense, or continue routine document management practices and risk a spoliation claim at some point in the future”.

However, because Land O’Lakes failed to adequately preserve and collect documents after the complaint had been filed, the court imposed a small monetary sanction and ordered that Land O’Lakes file a series of declarations and certifications regarding the completeness of its production.

Tips

If you decide to send a “cease and desist” or “demand” letter, be aware that a court is likely to conclude that you have triggered an obligation to preserve your own information. Whatever obligation or burden you seek to impose on your potential adversary will be imposed on you as well. If you automatically delete e-mails or overwrite backup tapes of key personnel, you should suspend those practices and institute a legal hold. Check your retention schedules to make sure that your documents or records will not be destroyed while you negotiate.

Your demand letter should be specific about the threat of litigation. Recognize that your time to file an action is beginning to run and that a court will probably not look favorably on an unreasonable delay between sending the letter and filing a complaint. The Cache court was very skeptical of “equivocal statement[s] of discontent” or unreasonable delays before bringing litigation.

Be as specific as you can about the need to preserve information. Do not overreach or send confusing or overbroad demands. Even more so than with equivocal demands, the court in Cache was scathing regarding “poorly drafted discovery requests”. (Discovery requests, by the way, that most of us have served or received: “’all documents concerning, referencing, evidencing, resulting from, or identifying []’”.)

If you enter into a tolling agreement, make sure that the agreement covers the preservation of information.

About This Blog

Welcome to the initial post of the Retention and Preservation blog. This blog will be limited to issues of retention and legal holds; others in the blogosphere will have to cover the full range of e-discovery. At least for now, I do not expect to be the Drudge Report of electronic discovery. However, I do plan on discussing the best of the best practices for information retention, to analyze current decisions on retention and preservation, and to post practice hints from guest bloggers who are responsible for these issues every day. I hope that you will find enough interesting information to persuade you to check back from time to time.

Comments and suggestions on format or content are welcome.

Thank You

Stephanie Gonsalves and Amanda Woodrum deserve all of the credit for teaching me how to blog, counseling me when I overlooked the obvious, and, most of all, trying to keep me to a schedule. I also would like to thank Deidre Paknad, who challenged me when I suggested to her that a blog on retention and preservation would fill a need.

All of the mistakes are mine and mine alone.

Blogroll and Other Resources

On the right side you will find links to other blogs, books, and an article by Judge Scheindlin on electronic discovery sanctions. I will expand that list as I come across additional resources that I believe will help practitioners deal with these problems.

EDRM: The site operated by George Socha and Tom Gelbman. Home of the ubiquitous Electronic Discovery Reference Model, it is an excellent source of information on electronic discovery, in particular the EDRM XML Standard designed to improve the e-discovery process.

K&L|Gates: This site operated by the law firm is the single best resource for news and decisions regarding e-discovery. In addition to information on recent decisions, if you follow the links on the site you will be able to review local federal district court rules addressing e-discovery. (In future posts I will look more closely at the default standard in the District of Delaware and the “Suggested Protocol for Discovery of Electronically Stored Information” in the District of Maryland.)

The Sedona Conference: This site contains links to the Conference’s many reports, working groups, and information regarding continuing legal education on the topic, among many others, of electronic discovery.

“Discovery of Electronically Stored Information: Surveying the Legal landscape”: Magistrate Judge Hedges has written an overview of electronic discovery. A very useful introduction.

“Electronic Discovery: Law and Practice”: A loose leaf publication covering the law and technology of electronic discovery by two practitioners.

“Evaluating the Electronic Discovery Capabilities of Outside Law Firms: A Model Request for Information and Analysis”: An excellent resource that can be used as part of a due diligence process to evaluate outside counsel’s (or your own) preparedness for electronic discovery. Inexperience of counsel and vendors is a serious issue. You are not doing yourself or your client any favors if you have not thoroughly vetted the e-discovery experience of your outside counsel and vendors.

“Electronic Discovery Sanctions in the Twenty-First Century”, Shira A. Scheindlin, Kanchana Wangkeo, 11 Mich. Telecom. Tech. L. Rev. 71 (2004): A law review article authored by Judge Scheindlin and one of her law clerks that analyzes all opinions on the topic of sanctions between January 1, 2001, and the date of publication. Although it was written before the new rules went into effect, it is still the best place to start research on sanctions.