E-Discovery Sanctions: A Continuing Trend

By K&L Gates attorneys Thomas J. Smith and Michael J. Crossey, Jr.

It is now black-letter law that electronically stored information (“ESI” for short) is discoverable if relevant or likely to lead to relevant evidence.  Indeed, the revisions to the Federal Rules of Civil Procedure (“FRCP”) that went into effect on December 1, 2006 addressing the discovery of ESI confirm that the 21st Century is witnessing the transformation of traditional trial practice to accommodate ESI in all phases of litigation, from initial discovery and production through trial.  Given the vast amount of electronic information retained by most companies, the complex task of preserving, retrieving, and producing discoverable ESI and the prospect of extremely harsh sanctions for discovery missteps, the discovery of electronically stored information, or “e-discovery,” has become a major concern and potential liability for all companies.

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