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Electronic Discovery Shines a Bright Light on Defendant Misconduct

Posted on September 5th, 2012

Our blog frequently writes about preservation of evidence and how corporate defendants are getting into hot water when their litigation hold policies fall short. As more corporations move to full electronic data over paper documentation, it will become harder to hide, destroy or fail to produce relevant evidence.

This is illustrated in “Sanctions for e-Discovery Violations: By the Numbers” by Dan H. Willoughby, Rose Hunter Jones and Gregory R. Antine, published by the Duke Law Journal. The study looked at cases from 1981 through 2010, although there was very little on electronic data discovery issues in case law before the late 1990s. Beginning in the twenty-first century, the sanction motions and awards are steadily increasing, and the trend is likely to continue.

Interestingly, the report also found the issuance of adverse jury instructions to be on the rise, the vast majority of which were for failure to preserve evidence, as opposed to failure to produce or failure to perform adequate searches (which was the justification in a smaller number of cases.) This should be a red light for defendant corporations, as plaintiff trial attorneys become more eDiscovery savvy and expert computer forensics uncover files that have been deleted or destroyed (purposefully or inadvertently).

Finally, the study revealed that in the twenty-first century, the percentage of cases where electronic discovery sanctions were issued are heavily skewed towards defendants. The percentage of cases where sanctions were issued was only 26 percent to plaintiffs in 2009 and 2010.

Our firm is composed of eDiscovery experts who are dedicated to the work performed by the plaintiffs’ bar. Call us at 888-313-4457 to learn more about our eConsulting and strategy planning services.

ILS – Plaintiff eDiscovery Firm

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