June 01, 2011

Advance Sheet: Looking Through the Wrong End of the Telescope

The action in the discovery process has shifted even more fundamentally from the learning of facts to the retrieval of documents.

Robert E. Shapiro

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Are you sick of spoliation yet? With the suddenness of a 1960s Latin American coup, this once little-used feature of litigation has vaulted into prominence, dominating both day-to-day practice and public discussion. And it’s not a pretty sight, having brought with it unnecessary motion practice, ever-changing rules, and sensational sanction awards. Everyone can tell that all is not right and something must be done. But what exactly? It helps to see some of the elements of the problem correctly.

Spoliation is hardly a new concept. So why has it become so prominent recently? A ready answer seems available in the relatively new phenomenon of digital communication and storage. It’s easy to forget how recently email and the digital revolution entered our lives. One in-house counsel who had refused to let his firm delete old emails finally relented in the face of mounting pressure by permitting the destruction of anything “from the twentieth century.” Jubilation turned to despondency when his colleagues realized how small a number of items this covered. Not surprisingly, spoliation has come of age in the 10 or so years that digital communication has flourished.


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