Friday, December 18, 2009

Twelve Step Guide to Botching eDiscovery

My brother, who is also in the computer business, likes to say that he is interested in artificial stupidity, because there is generally one way to get things right, but real creativity in getting things wrong. That certainly seems to be the case in eDiscovery. There are lots of ways that you can botch your case. I have compiled a list for those of you who are too lazy to think of your own ways to screw it up.

1. Request that your opponent produce documents in paper form, because they'll be easier to read that way.

2. Redact PDFs by drawing black rectangles over the privileged text.

3. Email privileged documents to the other side after failing to detect that your email program's auto-fill had added the wrong address.

4. Leave signs that you used programs like Evidence Eliminator on your laptop after you have been notified of a pending suit.

5. Produce fabricated e-mails.

6. Don't bother with the requirement to meet and confer and then complain about not getting the ESI you want in the form you want.

7. Claim that you don't have documents and then magically find them when threatened with sanctions.

8. Delay discovery, ignore court discovery deadlines, tell employees to ignore court orders, and generally disregard warnings from the judge.

9. Replace employees' hard drives days before they are scheduled for forensic imaging or simply abandon them when you close your business . You might also do a cursory search of your former employees' workstations, but don't bother with the server.

10. Continue a data destruction process for months after recognizing that the emails covered by a preservation order were being lost and even after the court reminded you to preserve them.

11. Don't bother to search your witnesses' computers or other relevant custodians' for relevant evidence, and don't use information provided by the other side to identify search terms.

Finally, the capper. This one is almost guaranteed to work.

12. Lie to the court about what you are doing and what you have done during eDiscovery and get found out.

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