This White Paper addresses the complications that regularly arise during discovery incivil litigation as a result of a corporate defendant’s faulty or insufficient systems andprocedures for e-mail retention and management. These complications, all of which are avoidable, increase litigation costs so exponentially that, in many cases, settlement becomes the only viable option.

    The e-mail discovery issues addressed herein fall into two broad categories. The first category concerns “cost-shifting,” particularly: (1) which party should pay the extraordinary costs associated with retrieval of e-mails from disaster recovery backup tapes; and (2) which party should pay the substantial costs associated with hard drive discovery for (a) e-mails stored in a decentralized, non-network environment (e.g., where responsive e-mails are dispersed among the hard drives of individual users); and (b) e-mails that have been “deleted” from mailboxes and now reside as on the hard drive as “residual” data?

    The second category concerns retention of e-mails, particularly: (1) what duty does a party generally have to preserve e-mails prior to and during litigation; and (2) what sanctions are appropriate against a party who fails in that duty?