The law on electronic discovery is developing rapidly. In the past few months, federal courts have issued several groundbreaking decisions against parties for discovery misconduct or negligence. And the U.S. District Court for the District of Columbia has developed a pioneering “marginal utility” analysis for determining when information from backup media must be restored in an effort to locate potentially responsive documents.
Sanctions for failing to preserve and produce data from backup tapes have ranged from monetary penalties to adverse jury instructions and judgment on the merits. In recent cases, attorneys have been required to demonstrate that personal attention was paid to the proper identification and review of information stored on clients’ computer systems.
