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The Corporate CounselorLJN NewslettersNewsSections

Managing Data And Anticipating Litigation

By Michele C.S. Lange and George M. May, Jr.

In today's digital world, corporations must manage data in a manner that mitigates legal risk and reduces the likelihood of sanctions for failure to safeguard and preserve electronically stored information (ESI) that is potentially relevant to a legal or regulatory proceeding. Approximately 40% of all e-discovery cases in 2009 involved claims for sanctions against parties that allegedly failed to comply with discovery obligations. Of the sanctions cases, 67% addressed an alleged failure to properly preserve ESI. See Kroll Ontrack's 2009 Year in Review Report, available at www.krollontrack.com/news-releases/?getPressRelease=61396. This growing body of statutory and common law regarding electronic discovery instructs litigants that the best defense against sanctions is to take proactive measures to fully comply with future discovery obligations. Ignorance or lack of preparation are no longer tolerated, and there is decreasing protection for preservation mistakes, oversights or intentional destruction activities.

Facing the Risks

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