As a follow-up to my earlier post on the eDiscovery Survival Guide for Corporate Counsel, here are six important lessons learned from the recent case of In re NTL, Inc. Securities Litigation, Case No. 02-3013, -7377 (S.D.N.Y. Jan. 30, 2007).
1. Plan ahead -- Start early to get a good understanding of a client's computer/storage systems and retention policies.
2. Stay focused -- Don't neglect to follow up on the litigation hold memo after it is circulated. The attorney must be proactive, not reactive, during the entire ediscovery process.
3. Hide the ball at your peril -- Evading one's ediscovery obligations can result in severe sanctions. In In re NTL, Inc. Securities Litigation, the court imposed an adverse inference spoliation sanction against the defendants.
4. Know what you "control" -- Its definition is broader than you think, as the court in In re NTL, Inc. Securities Litigation explained:
Under [FRCP] Rule 34, "control" does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party's control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action. (Emphasis added; internal quotation marks omitted.)
5. Don't overdelegate -- Make sure the attorney who has been delegated to litigate ediscovery issues understand their legal consequences.
6. Or else -- Gross negligence in preserving documents can land one in hot water, as In re NTL, Inc. Securities Litigation illustrated:
[T]he Gordon plaintiffs have demonstrated that defendant NTL Europe's failure to preserve documents and ESI ["electronically stored information"] relevant to plaintiffs' allegations was at a minimum grossly negligent. In light of NTL Europe's failure to call the Demerger Agreement to the Court's attention, the Court could find bad faith, but it need not reach that issue. Thus, no extrinsic proof of relevance is necessary, and the Gordon plaintiffs are entitled to an adverse inference spoliation instruction.
(Source: Boehning, Christopher H. and Toal, Daniel J., "Six Hard-Learned Lessons About EDD" (Mar. 2, 2007).)
