During pretrial discovery in civil litigation, businesses can incur substantial legal fees and must allocate significant staff hours to comply with their document production obligations. With the predominance of electronically stored information in daily business practices, responsive documents are no longer typically found in hard copy form within office file cabinets or at off-site warehouses, but rather are stored on back-up tapes, hard drives and digital media. Business and employment lawsuits can necessitate the review of thousands (and at times millions) of pages of electronic information during pretrial proceedings.
The risks are high if a company’s electronically stored information is not reviewed carefully and thoroughly to determine whether it must be provided to the opposing party in litigation. Courts may impose sanctions upon parties that have not preserved, reviewed and produced in a timely fashion electronic documentation that the other side was entitled to receive. Sanctions can include the award of attorney’s fees to the opposing party, the exclusion of evidence at trial, and the most draconian result of a dismissal of claims or defenses.
Furthermore, if a company and its counsel have poorly coordinated the compilation and review of electronically stored information, the following risks are increased:
• The unnecessary production of documents (a so-called “document dump”) that may go beyond the scope of an adversary’s document request (potentially opening the door for opposing counsel to detour the litigation by pursuing in discovery topics that may not be truly material to the facts in dispute).
• The inadvertent disclosure of documents containing privileged communications or proprietary information (making it difficult to undo the resulting strategic damage once the “cat is out of the bag”).
Many businesses have traditionally provided copies of their electronically stored files (often in hard copy printouts) to their legal counsel for a manual review. While this process may be manageable in smaller cases, it has the inherent disadvantage of running up the billable hour clock as the attorneys sort through the stacks. Also, there is always the potential for human error in a tedious, line-by-line manual review of the documents or inconsistent determinations when multiple persons are evaluating whether to place documents in “responsive,” “nonresponsive” or “privileged” categories.
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