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E-discovery ‘grace period’ is over

Any “grace period” litigators have had since the new e-discovery rules went into effect in December 2006 may be coming to a close.

“Courts are becoming increasingly intolerant of e-discovery errors and omissions,” says Jeane Thomas, a Washington D.C. lawyer and expert on e-discovery. Thomas was on a panel program June 15 at Virginia Beach presented by the Intellectual Property Law Section of the Virginia State Bar.

“We’re getting to the end of any grace period,” and seeing more monetary sanctions and adverse inference rulings or preclusion of evidence, Thomas said. “In a few instances, default judgments have been entered. The costs can skyrocket. … Sanctions are not reserved for deliberate misconduct.”

Eastern District U.S. Magistrate Judge Thomas Rawles Jones Jr. describes the e-discovery rules not as a sea change, but as a “useful additional set of traffic rules.” Jones said courts have been “seeing people still unprepared, but not really seeing the consequences. We’re reaching the time right now” when people can expect to see consequences for failure to comply.

As parties figure out how to use the new rules tactically, motions practice will increase, the panel predicted.

What else is hot?

“Text messages and instant messages are becoming the new area to search for ‘smoking guns,’” Thomas said. “A lot of people have gotten better about writing e-mails, but IMs are now a new area of focus. People are typing back and forth and then when they close the box,” they may think the data disappears. “Not always,” she said. It could be linked into an office system or backed up on a provider’s server.

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