E-Discovery should be E-litigation

March 18, 2010

There has been much discussion of the new Pension Committee decision's effect on e-discovery vendors, but its biggest lessons are for lawyers.

For example,  "discovery," in the traditional model, is something that happens after filing.    Yet Pension Committee and the more recent Rimkus decision both describe a Plaintiff's duty to avoid electronic spoliation that begins near filing. To be clear, that duty  has always been there -- but courts are now enforcing it with respect to electronic  issues that lawyers tend to relegate to "e-discovery'"   But "E-discovery" is now a term of art at best, and a misnomer at worst.   The Plaintiff's attorney who pulls out the "Electronic Discovery Reference Model" map during discovery could be too late.

That's not to say every case requires disabling the delete key on the client's keyboard, and preemptive universal backups of every server log, CD-ROM, and RAM chip.  "Proportionality" should rule, and in Federal cases, an early ESI meeting will help define the scope of relevant materials.  But these decisions mark a significant new danger zone for Plaintiffs and their attorneys; a zone  that extends well beyond "discovery," and one that may surprise many lawyers using a traditional litigation model.