From the National Law Journal, Sheri Qualters reports on the Delaware Court of Chancery’s recent spate of decisions regarding several aspects of e-discovery practice. Most significant to me is Beard Research Inc. v. Kates, in which plaintiffs were granted an adverse inference instruction for missing computer evidence. The key language:
If the parties do not focus on the handling of e-discovery in the early stages of a case, the Court is not likely to be sympathetic when, for example, one party later complains that stringent measures were not instituted voluntarily by her adversary to ensure that no potentially relevant information was lost.
In other words: Hashing e-discovery issues out early-on are critical to the success of a complaint later that the opposing party failed to avoid spoliation of data. Another worthwhile quote from the same article:
“If you’re counsel for any party, you have to get right on the horn when litigation starts or litigation is contemplated and instruct your client in no uncertain terms that everything needs to be preserved,” [Jim S.] Green [Sr., counsel for plaintiff in Triton Construction Co. Inc. v. Eastern Shore Electrical Services Inc.] said. “I would go so far as if to say, if you have a document retention policy that involves deleting e-mails, prudence would dictate that litigation override that policy.”