MATT DOW Jackson Walker L.L.P. February 14, 2007

The Plaintiff’s Practical Guide to E-Discovery (2005), by Craig Ball Electronic Discovery is “the single greatest litigation advantage for plaintiffs’ counsel willing to learn the ropes and aggressively assert their clients’ rights.” “Your opponent may be a courtroom whiz, but if he or she has a tenuous grasp of computer systems or doesn’t understand his or her client’s devices and data, defense counsel can’t give sound guidance about preserving digital evidence or pose the right questions to knowledgeable IT personnel.”

Plaintiffs’ Strategy Warn defense counsel of broad duty to preserve at the outset of the case File motion for a preservation order Take Rule 30(b)(6) deposition of a hands-on IT employee Propound detailed, tailored RFPs File motions to compel and for sanctions

Plaintiffs’ Goal Create the perception that the defendant is spoliating ESI because it’s hiding something Increase costs for the defendant Avoid cost-shifting Create a side-show that takes focus away from the merits of the case

Consequences Trap for the unwary Advantage: lawyers who understand the issues Advantage: clients with document retention programs that are followed More cases will settle early More cases will be filed All will have a better understanding of the merits of the case at an earlier stage of the litigation

Sanctions for Failure to Implement a Litigation Hold 3M Innovative Props. Co. v. Tomar Elecs., 2006 WL (D. Minn. Sept. 18, 2006) Transgressions: In addition to other misconduct, the defendant “failed to implement a company-wide litigation hold on relevant documents. Employees... continued to delete documents, including , after the litigation commenced.” Sanctions: Included an adverse inference jury instruction, with respect to the and other documents destroyed or withheld by defendant, that these documents support plaintiff’s claims and are unfavorable to defendant’s defenses.