South Carolina Lawyer
SC Lawyer, May 2009, #3.
King Kong v. Godzilla: Discovery Meets Modern Technology
South Carolina LawyerMay 2009King Kong v. Godzilla: Discovery Meets Modern TechnologyIf asked to identify the greatest monsters in movie history, a respondent would probably mention either King Kong or Godzilla. In the 1962 movie, King Kong v. Godzilla, the two monsters battle off the coast of Japan. King Kong emerges from the ocean, apparently victorious, but onlookers speculate that Godzilla may have survived the clash. They were right, since Godzilla appeared in more than 20 subsequent films.
Modern litigators are participants in a similar epic struggle between two monsters: the disclosure requirements of the rules of discovery and the technological ability to access and produce vast quantities of electronically stored information (ESI).
The federal Rules of Civil Procedure were amended in 2006 to include several provisions to deal with some of the issues involved in electronic discovery. The Federal Courts Law Review housed at the Charleston School of Law recently sponsored a conference on the ethical and legal issues facing lawyers in electronic discovery. Professor Allyson Haynes organized the conference, prepared the materials and drafted hypotheticals addressed by the panelists, covering topics such as the scope of the duty to cooperate with opposing counsel, methods of production and preservation of privileges during discovery of electronic material. Professor Haynes deserves the uniformly outstanding praise expressed by the attendees.
A central issue in discovery, particularly with regard to electronic materials, is when must a potential party preserve such materials.? Revised Federal Rule 37(e) provides: "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." The commentary provides that good faith may involve a modification or suspension of the operation of a routine electronic system if information is subject to a preservation obligation. Commentary and case law refer to such intervention as a "litigation hold."
Panelists discussed the following hypothetical situation regarding litigation holds:
An employee of Company A has a big disagreement with her superior and speaks to HR about her...