Of all the litigation mistakes that can happen, the one that may feel the most inevitable is an error in document discovery. There are many reasons for this feeling of dread, some practical and some psychological. First, discovery is hard to avoid; while many cases settle and trial can be avoided, some amount of discovery happens in most cases. With more opportunities to conduct discovery, there are more opportunities for it to go awry. Second, few litigators go to law school with dreams of conducting discovery, and so it’s often not given the attention it deserves and is pushed to more junior lawyers. This is a self-inflicted wound; document discovery can consume more than 50–70 percent of the overall litigation budget and is necessary to understand and develop your and your opponent’s facts of the case. Third, in the information age, not only has the volume of documents exploded, but the technology behind our client’s information and the tools available to conduct discovery have become more complex and sophisticated. Technophobic counsel are either avoiding the problem by burying their heads in the sand or not educating themselves to take advantage of the technology. In either case, this can lead to more errors.
Don’t panic. Not every discovery error is actually a problem. “The standard for evaluating discovery is reasonableness, not perfection.” Agerbrink v. Model Serv. LLC, No. 1:14-cv-07841-JPO-JCF, 2017 U.S. Dist. LEXIS 33249, at *5 (S.D.N.Y. Mar. 8, 2017). This does not mean that you can ignore discovery problems when they occur, but not every mistake or error is a crisis. Generally speaking, the most important thing to do is assess the problem, determine if it is an actual issue, and then fix it as transparently as prudence dictates.
The three most common discovery problems that strike fear in every litigator’s heart are:
- inadvertently producing privileged information;
- failing to produce responsive documents; and
- the scariest, failing to preserve responsive material.
There are lots of things you can do to prevent these mistakes, but this article focuses on what to do when they occur. We address each in turn.
Inadvertent Production of Privileged Matter
Many of us have been there. We are preparing ourselves to prepare a witness for deposition and reviewing documents from our production when we come across a document that we realize is privileged and has been accidentally produced. This is inevitable. Given the volume of documents reviewed and produced and the fact that all reviewers (and quality checkers) are fallible, a few privileged documents will leak through. Knowing these facts does not make you feel any better in the moment.
First, don’t panic. It is inevitable and we will all face it. Second, assess it. Is it a key document that truly provides privileged information that will give your opponent an advantage, or is it a privileged communication or document that will not have any practical effect on the case and to which your opponent is not entitled? Third, what steps you take next depend significantly on what steps you took earlier in the case to prepare for this eventuality. Specifically, did you have the court issue a Federal Rule of Evidence 502(d) order or state equivalent?
Seek a 502(d) order. Whenever possible, you should enter into 502(d) orders to minimize the risk of waiver from the inadvertent production of privileged documents. 502(d) orders allow courts and parties to establish rules on what constitutes waiver of privilege in the case. Courts can essentially eliminate waiver from production, and they have done so. Inadvertent waiver in one court will not result in waiver in a subsequent litigation, as 502(d) orders have a binding effect on state and federal courts. Fed. R. Evid. 502(f). Most state jurisdictions also have an equivalent of a 502(d) order, although New York is a notable exception.
While 502(d) orders should become routine in litigation, parties should be thoughtful in their drafting. You must have a clawback in the 502(d) order that allows retrieval of the inadvertently produced documents. With a broad claw-back provision, you may have the right to claw back your documents no matter what the circumstances giving rise to their production were. For example, Judge Andrew J. Peck of the Southern District of New York recommends language in a Rule 502(d) order stating that “production of privileged and work product protected documents or electronically stored information (ESI), whether inadvertent or otherwise, is not a waiver of privilege.” Agerbrink, 2017 U.S. Dist. LEXIS 33249, at *5.
502(d) orders do not eliminate the need for review. If privileged or private documents are disclosed, the opposing party may read your sensitive documents before you are able to claw them back. See David J. Kessler, Keith Angle & Ted Bosquez, Clawback Orders Do Not Trump Proportionality: Parties Need to Review Documents and Courts Must Not Ignore the Costs, BNA Digital Discovery & e-Evidence (May 23, 2013) (explaining reasons aside from privilege to review documents). Opposing counsel cannot unlearn the information they have gained. In addition, in most instances, documents need to be reviewed for responsiveness and confidentiality considerations—in addition to privilege—so document review is not obviated by the ability to claw back privileged documents. Thus, the 502(d) order should explicitly state that its existence does not eliminate the need for review and that the court should consider the cost of review in any proportionality analysis.
The 502(d) order should reserve the right for parties to claw back a document that has been disclosed or used. This will protect you in the event you do not discover that you disclosed a privileged document until opposing counsel uses the document in a deposition. In United States v. Wells Fargo Bank, N.A., the court found that although the parties’ protective order protected against waiver due to disclosure, “it says nothing about whether the failure to object to use of a document constitutes waiver”; accordingly, the court found that the government had waived its privilege to documents used in depositions. No. 1:12-cv-07527-JMF, 2015 U.S. Dist. LEXIS 113546, at *4 (S.D.N.Y. Aug. 26, 2015). In some jurisdictions, use of a privileged document by an opponent in a deposition, if subject to a timely objection, will not waive the privilege. See Emp’rs Ins. Co. of Wausau v. Skinner, No. 2:07-cv-00735-JS-AKT, 2008 U.S. Dist. LEXIS 76620 (E.D.N.Y. Sept. 17, 2008).
Your protective order should detail what should happen after you notify opposing counsel about the inadvertent production. For example, would you like opposing counsel to automatically return or delete the information? The 502(d) order also should address how you plan to resolve the dispute that is likely to arise if opposing counsel does not agree that a document is privileged. Parties should agree that, upon discovery or notification of inadvertently produced documents, the receiving party will not use or disclose them until the claim is resolved.
These should be orders of the court—not be agreements between parties, which have limited reach and sometimes will not be binding on the court—so they eliminate the risk that the production will be considered waiver in other courts even if it is not waiver in the instant court.
What should you do? After discovering you have produced a privileged document, first do a quick assessment and inform your client contacts about the inadvertent production—it’s their privilege—and let them know their options. How significant is the document? Is it worth fighting over, or is it better left alone because the claim of privilege is weak and the document unimportant? Do you have a 502(d) order in place that makes return of the documents and no waiver almost assured? Is there a claw-back agreement under Rule 26(b)(5)(B) in the protective order? Will the parties have to fight about waiver under Federal Rule of Evidence 502(b) or its state equivalents?
When you discover an inadvertent disclosure, it is not enough to claw back the document. You need to assess what caused the disclosure to ensure there is not a more systematic issue at work. Begin by investigating how the documents were inadvertently produced. Is this a minor error or an indication of a bigger problem with your review process? Depending on how the error happened, you may need to act more quickly to rectify the problem. For example, if your reviewing attorneys mistakenly coded privileged documents as not privileged, consider having different attorneys review the documents for privilege and retraining your initial reviewing attorneys or doing the re-review yourself (if the volume is small enough).
Alternatively, if your vendor failed to withhold all privileged documents from your production, you may need to do a wholesale clawback of the produced privileged materials. If you fail to investigate and remediate a systematic error, a court might conclude that you have failed to take reasonable steps to prevent disclosure and have waived privilege for those documents. For instance, in Lee v. Chicago Youth Centers, the district court found that the defendants had failed to take reasonable steps to prevent or rectify the disclosure of privileged documents where they delegated review entirely to an outside vendor and, upon discovery of inadvertent production, again delegated investigation and review to the same vendor without any attorney conducting a second review of the production. 69 F. Supp. 3d 885 (N.D. Ill. 2014).
Next, determine how many documents actually fell through the cracks. Did you inadvertently produce 100 documents out of 1,000 or out of 100,000? If the number of documents you produced inadvertently is low compared with your overall production—especially if discovery was conducted under a short timetable—the court may be more understanding. Courts have found no waiver where fewer than 200 documents out of tens of thousands were produced. See, e.g., Bd. of Trs. Sheet Metal Workers Nat’l Pension Fund v. Palladium Equity Partners, LLC, 722 F. Supp. 2d 845 (E.D. Mich. 2010).
Gathering all the facts about how this inadvertent production happened will eventually help you tell your story. Federal Rule 502(b) allows you to claw back inadvertently produced documents when the disclosure was mistaken. So, if you have disclosed documents because they were miscoded as not privileged or because of a computer glitch or other vendor issue, your disclosure could still be considered inadvertent.
You are also required to take reasonable steps to rectify the error as soon as you discover the inadvertent disclosure. Fed. R. Evid. 502(b)(3). Notify opposing counsel as soon as you reasonably can, specifying in detail the documents that were inadvertently produced. Then ask for the return or destruction of the documents. Courts will expect you to act promptly after discovery of your error. A reasonable amount of time is within several days or weeks, and generally not several months. And if you should have discovered that a document was privileged—for example, if an inadvertently disclosed work-product document was used during a deposition—once you determine the document is privileged, you should promptly object or follow up with opposing counsel as soon as you determine the document’s privileged status. In some jurisdictions, you must object straight away if a privileged document is used during a deposition. Be vigilant and on the lookout for privilege.
You must take reasonable steps to prevent disclosure. Fed. R. Evid. 502(b)(2). If this issue goes to court, you will want to make a case that you had robust measures in place to protect against inadvertent production. Gather documents or affidavits that detail the instructions provided to review attorneys, how many hours reviewers spent reviewing the documents, and any quality control checks that were conducted, so you can demonstrate to the court that although documents were inadvertently produced, you took reasonable steps to prevent it from happening.
Protect private and personal data. Inadvertent disclosure of privileged information is not the only thing you need to worry about. Inadvertently produced documents that contain personally identifiable information (PII)—such as Social Security numbers, tax returns, log-in information, or personal health information—are also a concern. Producing such documents could violate federal laws such as the Health Insurance Portability and Accountability Act (HIPAA), state regulations, or possibly even foreign data privacy regulations. You should discuss the topic of sensitive personal information early on in the meet-and-confer process and suggest that the parties redact or encrypt PII. In addition, seek a protective order that details data security standards and breach notification requirements with which the parties will comply. You may wish to consider federal and state law for specific drafting language depending on the applicable jurisdictions and types of data at issue. HIPAA, for instance, specifies what a HIPAA-qualified protective order must contain. See HIPAA Privacy Rule, 45 C.F.R. 164.512(e)(v).
Failing to Produce Relevant Information to Which the Opponent Was Entitled
Many of us have had this problem. Discovery is essentially complete. Documents have been produced and both sides are taking depositions, when the client calls up and tells you one of a number of stories: (1) the widow of our former chief information officer just called to ask what we want to do with the boxes of backup tapes in her garage, (2) we just discovered that we searched people’s emails but missed their hard drives, (3) we found 100 boxes from the marketing department that were mislabeled and stored off site, or (4) we found three new SharePoint locations that our key players used during the project at issue. Again, don’t panic.
Assess the problem. Identify what was missed, why those documents were missed, and whether there are other missing documents. Are the documents in question even relevant or responsive? If it is a large container of documents (e.g., backup tapes), can it be investigated in a proportionate way? If there are too many documents to review them all quickly, manage the situation by sampling documents and determining whether there is actually a problem or just another collection of irrelevant materials.
If there are responsive documents, you may still have time to produce them within the discovery period. Where a producing party fails to supplement missing production until after the close of discovery, the producing party may be subject to sanctions pursuant to Federal Rule of Civil Procedure 37(e). See In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335, 1358 (N.D. Ga. 2012). It is important to keep in mind that late production sanctions pale in comparison with the likely hefty sanctions for improperly withholding documents that should have been produced.
When considering the consequences for a late production, courts focus on whether the late production prejudiced the requesting party. The Delta court ultimately declined to issue sanctions for the defendant’s belated, supplemental production where the plaintiffs’ prejudice was mitigated by a revised case schedule. Id. Producing documents “late” may not meaningfully prejudice the opposing party if opposing counsel has adequate time to prepare for trial upon receiving the documents. If depositions have not yet been taken, there may be little, if any, prejudice to the receiving party due to the belated production. Even if the missing documents concern persons who have already been deposed, opposing counsel may have time to reopen depositions and question the deponents about the documents in your supplemental production.
If you properly produced all documents in a timely manner, you should still consider whether you need to supplement your document production prior to the close of discovery. Not all jurisdictions require you to supplement. For instance, if your production was complete when made, you may have “no duty to supplement your response to include information thereafter acquired.” Ala. R. Civ. P. 26(e); see Fed. R. Civ. P. 26(e) (duty to supplement or correct when “in some material respect the disclosure or response is incomplete or incorrect” or as ordered by the court). That being said, err on the side of caution. Withholding documents could be considered down the road as evidence of bad faith or willful disregard of the duty to produce, and could violate your duty of candor to the tribunal and opposing counsel.
Before you provide a supplemental production, double-check that the documents are relevant and whether the documents might be favorable to your case or were actually requested by the opposing party. A party is “plainly not entitled to discovery of documents it did not request,” H. K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118 (6th Cir. 1976), and courts will generally deny a party’s request to reopen discovery and seek previously unrequested documents.
Talk to your client. Even if you learned about these documents from your client, that does not mean that everyone at the client knows what happened or even that it happened. Explain the situation and provide a preliminary plan to remedy it. Discuss with your client the problems of having to supplement the production and strategies for addressing those problems.
Talk to opposing counsel. If you know you are going to supplement late and out of sequence, you should also talk with opposing counsel and give them an idea of what you’re producing and when you’re producing it. For instance, have a reasonable explanation of why these documents were not uncovered in initial searches. Explain that you are working diligently and reasonably to produce the documents, and then actually deliver within the promised time frame. Being transparent with opposing counsel now will be helpful down the road. You may need to make changes to the discovery schedule in order to feasibly produce your unanticipated production, and you will want to secure opposing counsel’s agreement to any requests you must make to the court. But be strategically transparent; give opposing counsel enough information that they will understand why things are late, but not so much information that you will be bombarded with unnecessary discovery or discovery requests. “[W]hile parties must . . . conduct a reasonable search when responding to [discovery] requests, the Federal Rules do not demand perfection.” Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 615 (C.D. Cal. 2013). Missing or late production does not mean you did not act reasonably, and it would be improper for opposing counsel “to infer nefarious intent or bad faith from ordinary discovery errors.” Id. (quoting PaineWebber Grp., Inc. v. Zinsmeyer Trusts P’ship, 187 F.3d 988, 993 (8th Cir. 1999)). You should talk to opposing counsel with the knowledge that you have acted reasonably and are now in good faith working with opposing counsel to continue to meet your production obligations.
Produce if necessary. If you did fail to produce documents that you should have produced, produce the documents as soon as you reasonably can. Under Federal Rule of Civil Procedure 26(g), you had to represent that your prior discovery production was complete and correct. Now that you are aware of missing documents, your representation of completeness may no longer be true, and you have to remedy that. You may also have a Federal Rule of Civil Procedure 26(e) obligation to supplement your disclosures in a timely manner if your prior disclosures were incomplete or incorrect in light of new information (such as newly discovered documents).
Missing documents in your production does not mean that the opposing party can dictate how you need to conduct your discovery moving forward or investigate how you initially conducted your discovery process if you, not your opponent, discovered the missing data. “The standard for evaluating discovery is reasonableness, not perfection,” see Agerbrink, , at *5; and as in Agerbrink, missing some documents does not mean that your discovery process was unreasonable.
Discovering a Failure to Preserve
Remember, don’t panic. Discovery is hard. Do not forget that “some data will be lost in virtually any case,” Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y. 2010), and perfection is not the standard.
Assess the problem. Assess what was lost. Ask yourself how you even know that documents have been lost. Identify whose documents were lost and whether they came from a key individual in the litigation or someone more tertiary. You must then determine why documents were lost. Is this a result of an accidental program deletion, human error, or an intentional rogue actor? After collecting this information, you may be able to determine the extent and seriousness of the issue and whether anything else is missing.
First, you must figure out whether the documents were in fact deleted. In today’s digital environment, it is actually pretty difficult to truly delete all copies of a document. Consider whether you can restore the information from an archive or legacy system, from another custodian’s information, or from an email dumpster or similar technology. You might need to consider whether the information can be recovered from third parties, and if so, it may be important to move quickly to advise those third parties of the need to preserve that information. You may even want to consider whether the deleted information can be restored forensically. As long as the lost documents can be restored or replaced, you have not failed in your duty to preserve under Federal Rule of Civil Procedure 37(e).
Regardless of whether you can recover the lost documents, determine whether the documents are relevant to the litigation. When were these documents created, and when were they last accessed? Perhaps the documents are outside the relevant time frame of the litigation. Who used them or created them? Figure out if the documents belong to a certain department, team, or custodian. If you lost documents concerning a solar project, but the litigation is about your client’s oil and gas division, for example, then it is entirely possible you would not have had to produce those documents anyway. You should also consider whether the documents are cumulative of information already produced.
You will also need to determine when the documents were lost. If the documents were destroyed before your client reasonably anticipated litigation, then (absent any independent regulatory requirements) there was no duty to keep the documents and therefore no spoliation of evidence. That means it is OK to delete documents in the normal course of business if your client did not anticipate litigation at the time the documents were deleted. Note that many businesses, fearing spoliation, preserve too much. There are real costs associated with keeping documents you do not need, from storage costs to additional discovery costs as you search larger and larger pools of data. Companies should have document deletion policies that are as robust as their document retention policies.
Courts generally find that your duty to preserve is triggered when litigation is reasonably foreseeable. See Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. This will occur as soon as a party is on notice that future litigation is likely, such as when a party decides to bring a lawsuit, receives a preservation notice, or files a complaint. In some cases, a demand letter that “openly threatens litigation” if the demands are not met will also trigger the duty to preserve. Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 511 (D. Md. 2009). The scope of your duty may expand as the case progresses to include additional subject matters that become known to the parties. The District of Kansas succinctly addressed the issue of trigger and scope of the duty to preserve in Marten Transport, Ltd. v. PlattForm Advertising, Inc., No. 2:14-cv-02464-JWL-TJJ, 2016 U.S. Dist. LEXIS 15098 (D. Kan. Feb. 8, 2016). In Marten, the defendant moved for sanctions against the plaintiff for failure to preserve internet search history from 2013 that was relevant to its defense. Refusing to apply a perfection standard or hindsight to determine the scope of a party’s duty to preserve, the Marten court held that although the duty to preserve had been triggered when the plaintiff first sent a cease-and-desist letter to the defendant in 2013, the scope of this duty did not expand to the search history at issue until 2015, when the plaintiff was put on notice that this information was relevant to the litigation. Id. at *10. As a result, if the documents were deleted before your duty to preserve was triggered, or before the scope of that duty was expanded, then you were under no obligation to preserve those documents. But recognize that gray areas do exist about when one’s duty has been triggered.
Advise your reluctant client. At some point after discovering that documents have been lost, you will need to tell opposing counsel that discoverable documents were deleted. Understandably, your client may be reluctant to disclose the spoliation to opposing counsel. Make it clear to your client that the cover-up is worse than the crime and that there are strategic reasons to be prudently transparent with opposing counsel (see the section on disclosing to opposing counsel, below).
Be mindful that if you know that your client intentionally deleted documents but your client does not want to disclose those facts to opposing counsel, you have to consider your ethical and legal obligations. In this situation, you may find yourself caught between your duty of confidentiality to your client and your duty of candor to the tribunal and opposing counsel.
Model Rule of Professional Conduct 1.6 and its state equivalents establish an ethical duty of confidentiality. You cannot disclose the deletion of data to opposing counsel without your client’s informed consent. Model Rules of Prof’l Conduct R. 1.6(a) (Am. Bar Ass’n). Some states have adopted a crime or fraud exception to allow or compel disclosure. If you have actual knowledge that your client has intentionally destroyed relevant data, you may have a duty to disclose under the crime or fraud exception.
You also have a duty of candor toward the tribunal if your client engages in criminal or fraudulent conduct that requires you to take remedial measures, “including, if necessary, disclosure.” Model Rules of Prof’l Conduct R. 3.3(b). If you know that your client has intentionally destroyed data, you may have a duty to disclose that information. In addition, your client’s loss of data could make your previous representations to the court false. Under Model Rule 3.3(a), you cannot make a false statement of fact, or fail to correct a false statement of material fact, to the tribunal. In People v. Miller, a client stated in an affidavit that the client had access to certain documents but did not mention that these documents had been deleted and subsequently, but perhaps not fully, recovered. The court sanctioned the lead attorney for failing to correct his client’s statement despite actual knowledge that the documents were mistakenly deleted at the direction of counsel. No. 16PDJ067, 2017 Colo. Discipl. LEXIS 50, at *1 (Colo. O.P.D.J. June 1, 2017). Although you can “resolve doubts about the veracity of testimony” in favor of your client if you do not know whether your client has intentionally deleted documents, you cannot “ignore an obvious falsehood.” Model Rules of Prof’l Conduct R. 3.3 cmt. 8.
Disclose to opposing counsel. Spoliation is a serious, potentially sanctionable offense. There are strategic reasons why you should get ahead of this thorny issue by being transparent and talking to opposing counsel as soon as you are able, given your ethical duties. First, nondisclosure can create problems down the road and can provide opposing counsel with ammunition that documents were lost willfully or in bad faith. In contrast, if you are transparent about the loss of documents, you can show opposing counsel, and advocate to the court, that you have been acting reasonably and in good faith.
Transparency with opposing counsel does not mean open, imprudent transparency. Again, you should be strategically transparent with opposing counsel: Provide a reasonable explanation of why the documents were lost, and propose a solution, not just a problem. Because the requesting party “is predisposed to over emphasize the prejudice and importance of the lost [electronically stored information],” Snider v. Danfoss, LLC, No. 15 CV 4748, 2017 U.S. Dist. LEXIS 107591, at *5 (N.D. Ill. July 12, 2017), report and recommendation adopted, 2017 U.S. Dist. LEXIS 120190 (N.D. Ill. Aug. 1, 2017), you should provide opposing counsel with enough information to address their concerns. Determine the likely value of the missing documents and use this information to shape your conversation with opposing counsel. Are these unique documents essential to the case, or are they cumulative or marginally relevant documents? To the extent you can argue that nonessential documents were lost and you are not just trying to make a “smoking gun” document disappear, do so.
Be thoughtful about how you explain that documents were lost—being transparent with your opponent does not mean that you abandon your role as an advocate. Disclosing thoughtless and unnecessary details about your preservation process could lead opposing counsel to weaponize your own words against you in subsequent discovery on discovery requests and sanctions motions. If you fail to nip opposing counsel’s concerns in the bud, you will find that instead of litigating your case on the merits, you will be primarily litigating the issue of spoliation. Remember, relevant documents are lost in nearly every litigation, even where producing parties are acting reasonably and in good faith. If every loss of data were treated as a crisis, “‘there [would be] a real danger that litigation [would] become a “gotcha” game rather than a full and fair opportunity to air the merits of a dispute.’ In order to avoid sanctions, parties would be obligated, at best, to document any deletion of data whatsoever in order to prove that it was not relevant or, at worst, to preserve everything.” Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y. 2010) (quoting Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 468 (S.D.N.Y. 2010), abrogated by Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012)) (internal citations omitted). However, the federal rules do not require you to preserve “every shred of paper” when under threat of litigation. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003). In fact, the rules state that in a digital world, “perfection in preserving all relevant electronically stored information is often impossible.” Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. Therefore, you should avoid losing documents but understand that sometimes it happens despite all reasonable efforts. Do not let opposing counsel use your loss of documents as an opportunity to make a mountain out of a molehill. You should discuss lost documents with your opponent both to alleviate concerns and to make it clear that you took reasonable steps to preserve. Err on the side of transparency with your opponent, but do not let that conflict with your ethical obligations to advocate effectively for your client.
Make sure it does not happen again. Although losing documents may seem like the end of the world, remember that perfect preservation is not required. Rule 37(e) states that “due to the ever-increasing volume of electronically stored information . . . perfection in preserving all relevant electronically stored information is often impossible.” With that in mind, Rule 37(e) will allow courts to impose sanctions only if (1) the documents should have been preserved, (2) you failed to take reasonable steps to preserve the documents, and (3) the documents were lost and cannot be restored or replaced through additional discovery.
Perfection in preservation may not be required, but make sure it does not happen again. To ensure that more documents are not lost in the future, determine how the documents were deleted in the first place. Was a hold notice issued? Did counsel discuss the hold notice with key players? Did counsel discuss preservation issues with information technology personnel? Are the documents limited to a specific custodian or data repository?
Preservation issues must be addressed at the outset of litigation to avoid exponentially worse problems down the road. If possible, address preservation practices before your client anticipates litigation or gets sued. Your clients need to know how they are going to address preservation issues ahead of any litigation—if they wait to think about preservation until they receive service of a complaint, it may be too late.
The most important, if nerve-racking, thing you must do after you have been informed of a major discovery mishap is to tell your client and begin working on a strategy to address the problem together. Counsel and client teamwork is essential to investigating and addressing discovery issues. When you disclose what happened to opposing counsel, control the message by providing a well-researched, reasonable explanation of what happened and how you are going to fix it. Move reasonably quickly in your investigation and attempt to rectify errors in production—courts are looking for you to take reasonable steps to address the problem. Make sure you document your discovery process as you and your team conduct it. That way, when a problem arises, you have a jump start on what happened and you can start working on solutions. These are the building blocks to successfully addressing the biggest document discovery problems.
Did we mention don’t panic?