Managing discovery of electronically stored information (ESI) is a challenging task. Companies often generate and store huge volumes of data across multiple sources, employees and locations. Further, many discovery requests that seek ESI disregard the costs or burdens imposed on the responding party. As exemplified in the highly publicized Qualcomm case, moreover, failing to collect and produce relevant information can be costly, and courts have severely punished the failure to produce e-mails or documents. Qualcomm, for example, recently paid more than $8.5 million in attorney fees in a patent infringement case for failing to produce numerous e-mails during discovery. Similarly, in a shareholder case, DaimlerChrysler was ordered to pay $556,061 in sanctions after certain documents were not produced until trial.
Cases involving million-dollar meltdowns, however, should remain the rare exception. Trial attorneys are becoming more adept at conducting e-discovery and can learn helpful lessons from recent cases. Recent e-discovery cases teach three important lessons: (1) properly plan for e-discovery; (2) cooperate with opposing counsel; and (3) correct any mistakes early in the case.
