Last week I had the honor of moderating the main-stage judges’ panel at the DRI Product Liability Conference in Austin, Texas. I was joined by three distinguished members of the Federal judiciary:
I am pleased to announce the availability of our firm’s updated publication, A Guide to ESI Preservation Responsibilities [updated January 2016]. I believe this white paper serves as a useful resource to anyone dealing with the complicated issue of preservation of electronically stored information (ESI), particularly in product liability matters.
The duty to preserve ESI and other evidence arises once litigation or an investigation can be reasonably anticipated. This duty has been addressed repeatedly in published opinions over the past few years and is well established across all litigation areas, including product liability. Nevertheless, as an e-Discovery practitioner, I receive a steady flow of inquiries from clients and fellow attorneys who are seeking to confirm whether a legal hold should be issued and, if so, the exact steps they must take to ensure defensibility.
During the past decade, the discovery of electronically stored information (ESI) has come to the forefront of litigation. In particular, e-Discovery has created significant challenges in product liability actions where plaintiffs can seek tremendous volumes of ESI while having virtually no document production burdens of their own. Perhaps some plaintiffs are truly seeking that one kernel of critical information (the proverbial “smoking gun”) that can support their allegations. But as in cases with asymmetric discovery, it seems that broad demands for ESI are made for the purpose of driving up defense costs, thereby increasing settlement values.