New York court decision suggests penalties for bad eDiscovery

A recent court decision in the U.S. District Court for the Southern District of New York suggests that legal counsel are now obligated to advise clients on eDiscovery rules and practices, one legal discovery attorney said.

Judge Shira Scheindlin wrote in a recent opinion piece that the duty to preserve records applies to both paper and electronic documents, and that failure to preserve either type of records or search for them in the right places will lead to the spoliation of evidence. Bill Belt of law firm LeClairRyan said that this decision will result in greater focus on technical procedures associated with eDiscovery.

"The decision's focus on procedural missteps may encourage greater focus in discovery battles on technical processes and turn discovery into extended games of 'gotcha,'" Belt said.

Under this opinion, parties that are unwilling or unable to preserve electronic documents and adequately search through them will be subject to penalties, Belt noted.

"As electronic records and communications such as emails have come to replace traditional paper documents, courts have placed increased emphasis on the need for good electronic recordkeeping," said Ranjit Sarai, product manager for M+Archive at Messaging Architects. "We see this trend in practice as more and more of our clients rely on their email archiving solution to remain compliant with new eDiscovery rules."