ESI Preservation and Collection - Issues and Solutions

03/09/2010

E-discovery is complex, expensive and daunting for attorneys who are not computer savvy. It is also a potential minefield. In Qualcomm Inc. v. Broadcom Corp., the court ruled that Qualcomm’s lawyers “chose not to look” in the right places for the right documents in what it called a “monumental discovery violation” involving 46,000 e-mails. The court imposed an $8.6 million Rule 37 sanction against Qualcomm, and referred six of its outside counsels to the state bar for possible disciplinary proceedings. How do 46,000 e-mails elude attention? Whatever the reason, the best way for counsel to avoid a similar disaster is to fully understand the client’s computer systems and to directly manage the preservation and collection of electronically stored information (ESI). Counsel must be able to personally and confidently determine whether all sources of ESI have been identified and explored. Knowledge of e-discovery law is not enough to achieve this goal. Counsel needs to understand computer systems and expect to manage the preservation and collection of ESI from scores of custodians and, possibly, hundreds of computers.

The purpose of this article is to describe the basic issues that attorneys face when tasked with preserving and collecting their client’s ESI for litigation and to offer tangible and practical solutions.

© Bloomberg Finance L.P. 2010. Originally published by Bloomberg Law Reports, Vol. 4, No. 8, February 22, 2010. Reprinted by permission.

The full article appears in the PDF below. 

ESI-Preservation-and-Collection.pdf

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