THE FIX

Contact Exterro to learn how our e-discovery software solution can help solve these common e-discovery problems.

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“[B]y failing to retain any documentation, a defendant may

lose its ability to credibly defend claims asserted against

it, and it may open avenues of third party discovery which

would have been closed had the defendant retained

documents consistent with standard business practices,

and thereby be considered a reliable source of the

relevant discovery.”

Peter Kiewit Sons, Inc. v. Wall Street Equity Group, Inc. (D. Neb. 2011).

Lack of Document Retention Policy

"[T]he failure to issue a written litigation hold in a timely

manner amounts to gross negligence."

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. 2010).

No Written Legal Hold#2

Court cited the defendants' failure to identify a key

custodian with potentially relevant evidence or preserve

his files as one of the sanctionable activities.

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., (S.D. Ill. 2013).

Failing to Identify Key Custodians

Poor DocumentationJudge Paul Grimm states “Defendants neither identified

the keywords selected nor the qualifications of the persons

who selected them to design a proper search; they failed

to demonstrate that there was quality assurance testing;

and when their production was challenged by the plaintiff,

they failed to carry their burden of explaining what they

had done and why it was sufficient.”

Victor Stanley, Inc. v. Creative Pipe, Inc., (D. Md. 2008).

Forgoing Custodian InterviewsA special master determined that defendant did not

perform any investigation of likely electronically stored

information (ESI) sources for any of the custodians.

Small v. University Medical Center of Southern Nevada, (D.Nev. 2014).

Inadequate Privilege ProtectionWith respect to the so-called “clawback” provision under

Federal Rule of Evidence 502(d), “such a provision will

permit the parties to conduct and respond to discovery

in an expeditious manner, without the need for time-

consuming and costly pre-production privilege reviews,

and at the same time preserve the parties' rights to assert

the attorney-client privilege or work product immunity.”

Rajala v. McGuire Woods, LLP (D. Kan. Jan. 2, 2013).

Insufficient Authentication“[T]he record being proffered must be shown to continue

to be an accurate representation of the record that

originally was created. Hence, the focus is not on the

circumstances of the creation of the record, but rather

on the circumstances of the preservation of the record

during the time it is in the file so as to assure that the

document being proffered is the same as the document

that originally was created.”

Lorraine v. Markel American Insurance Co. (D. Md. 2007).

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Along With Best Pract ices to F ix ThemTop 8 E-Discovery Problems

Track legal hold acknowledgments and target non-compliant employees for escalation

to their supervisors.

THE FIX

To properly identify key custodians, (1) Interview custodians to find additional/other custodians

who may have responsive information, and (2) Integrate HR systems with legal hold software to keep an updated custodian

list so key custodians are not missed.

Establish and enforce a document retention policy that integrates with a legal hold system,

enabling the suspension and resumption of the policy when the related matter has concluded.

Document Retention Policy

Legal Hold System

THE FIX

“The Court finds both defendants failed to ensure that

the auto delete feature of their employee cell phones,

company owned and personal, was disengaged for the

purpose of preserving text messages and, as such, this

allowed countless records to be destroyed.”

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., (S.D. Ill. 2013).

Ignoring Mobile Devices#8 THE FIX

Develop and enforce workplace policies for all user and company-issued mobile devices. Consider investing in specialized technologies that allow

for the easy extraction of mobile device data.

THE FIX

If admitting computer stored records, plan to authenticate the record by the most rigorous

standard that may be applied.

THE FIX

Document all e-discovery activities in “judge friendly” reports. In addition to documenting

what actions were taken and when, be sure to also capture why certain decisions were made.

#4 THE FIX

Once litigation becomes likely, immediately issue custodians questionnaires to identify data

sources that may have responsive ESI.

THE FIX

Pursue a 502(d) court order for all federal matters and use analytics to categorize and label likely privileged information.

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502(d)