Because e-discovery is still such a fresh issue, recent court decisions have impacted how attorneys are dealing with it. The shift has resulted in broader guidelines in the Federal Rules of Evidence over the last few years, in addition to landmark cases. Some of the more current decisions stem from the Delaware Court of Chancery, which is one of the nation's most prominent business litigation courts.
These Delaware decisions stress attorney responsibility. Electronic discovery most often relates to e-mails and the process of ensuring that their corresponding data is not deleted. The Court emphasized that counsel must take appropriate measures to guarantee that clients do not destroy data. In addition, it stated that attorneys must be certain to conduct proper searches to collect e-discovery. Clients cannot be allowed to search their own e-mail systems, for example.
One of the biggest decisions concerning electronic data came from a ruling in California. The case (Qualcomm v. Broadcom) was a patent trial that resulted in allegations of discovery misconduct after Qualcomm lost. Initially, Qualcomm's counsel was reprimanded for not properly searching for documents, accepting a client's assurances that the search was sufficient, and ignoring warning signs that the search was inadequate. During additional litigation, it was found that the attorneys did not act in bad faith and initial sanctions were lifted. Despite this, the case served as a cautionary tale to firms to take courts seriously on the issue.
For more information, see the article at the ABA's business law newsletter.
This whole new field of elctronic discovery and computers is very scary from the legal professionals point of view. Here's my question, did attorney's used to get sanctioned if their clients shredded documents in the pre-electronic era? If not, why should they be responsible for knowing more about how to protect electronic evidence than they were for paper evidence? I don't think it is right that the legal profession should be any more responsible for this than they are for other types of evidence. It is time for the courts to catch up to the technological advances in the world.
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