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e-Discovery Worries?

By David Wilner

Concern has arisen among corporate counsel that despite their best efforts at development and monitoring of electronic document retention programs, sanctions ranging from fines or adverse jury presumptions to default judgments may be imposed if electronic information is not handled correctly. Consider, for example, that a company recently was sanctioned $2.75 million after 11 key employees failed to comply with a “freeze” and lost electronic information as their computer files were overwritten for several months.

Recent proposals to amend the Federal Rules of Civil Procedure to account for electronic documents and to provide a “safe harbor” limitation on sanctions could provide some relief. As a Feb. 15, 2005, deadline for public comment on the proposed federal rule changes for electronic discovery approaches, corporate counsel concerned with issues arising from discovery in federal litigation of computerized information should take notice.

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