The Oct. 1st, 2008 issue of Corporate Counsel Magazine published the article entitled Hide and Seek, by Sherry Karabin. In this story Ms. Karabin explores the impact of FRCP on eDiscovery. Her investigation suggests that although courts have become quicker to enforce the gathering of electronic evidence, they have been somewhat forgiving in terms of penalties. That said, the article goes on to site a few high profile and high dollar examples of court imposed sanctions around eDiscovery infringements; Qualcomm, Move Inc. and Global Naps Networks.
The theme here seems to be a warning that courts are aware that pertinent electronic evidence is indeed discoverable. And although defendants have been given a bit of slack, this leniency probably won’t be long-lived. Jeffery Carr, who is quoted in this article, would like to believe the hype around eDiscovery is solely a result of noise made by vendors and consultants. But in all likely-hood the punishments dolled out to defendants mishandling eDiscovery attempts will become the norm rather than the exception. The hype will generate awareness, technologies will continue to advance, and the legal community will become ever more knowledgeable about eDiscovery. It will become much harder hide digital evidence as the seeking becomes a mainstream requirement.