Tackling eDiscovery Before it Bites
Lane Powell Attorney Laura Marquez-Garrett authored an article in the July/August 2012 issue of Washington Bankers Association’s (“WBA”) Issues and Answers magazine titled “Tackling eDiscovery Before it Bites.” In the article, Marquez-Garrett discussed examples of ways banks can reduce the risk of sanctions and make ESI preservation and retrieval more manageable.
Consider the percentage of bank transactions that involve electronic images and data, not to mention the number of voice mails, emails, texts and social networking posts created by bank employees. Most, if not all, business begins or ends with electronically stored information (“ESI”).
Now consider the duties imposed by state and federal law on parties to a lawsuit. For example, a duty to preserve arises when litigation becomes foreseeable and requires both suspension of current policies that might alter or destroy relevant ESI and affirmative steps such as issuance of written litigation holds and identification of key ESI custodians and locations.
For entities that generate staggering amounts of data on a daily basis, cost-effective compliance may seem impossible. On the other hand, ignoring these obligations create an even greater risk, particularly as more and more plaintiffs discover that noncompliance can be an effective Hail Mary pass. Courts have considerable leeway when it comes to sanctions, which often range from monetary penalties, to adverse inferences and jury instructions (i.e., the jury may assume the lost data would have supported a plaintiff’s claim had it been preserved), to outright dismissal or judgment in more egregious cases.