MINNEAPOLIS - E-discovery has become more the rule than the exception in civil cases throughout Minnesota and the rest of the country. In fact, it's gotten to the point where it's so common, e- discovery may even be in danger of losing its name.
"We have got to stop calling it 'e-discovery,' and start calling it discovery," said U.S. Magistrate Judge Franklin L. Noel at a recent panel discussion on the subject. "When, every once in a while, there is a dispute only involving paper, we can call that 'paper discovery.'"
Noel made his comments at "E-Discovery: Beyond the Basics to Today's Most Important 'Make or Break' Practice Issues," an all-day CLE program sponsored by Minnesota CLE on Aug. 13.
Minneapolis attorney Peter C. Hennigan told attendees that the e- discovery age has created a rise in spoliation motions, with parties who can't get the electronic evidence they want arguing that the other side should be held accountable.
"It's a whole new arena," he said.
Minneapolis attorney Jake M. Holdreith agreed. In-house lawyers live in fear of spoliation motions, he said, adding that opposing parties sometimes proceed under the philosophy "if you can't find it, it must have been destroyed."
Carol A. Peterson, an in-house lawyer for 3M, said that, like other corporate data, electronic data has to be managed appropriately. In the case of electronic data, that means developing appropriate retention policies and following them.
Several of the panelists at the CLE pointed out that corporate litigants are unlikely to get into trouble if they only destroy data as part of their regular business practices and take care not to destroy information subject to a litigation hold. This not only includes data that pertains to active litigation, but also data that could be reasonably anticipated to be material to future litigation.
Joan D. Humes, in-house counsel for Ovations/United Health Group, pointed out that when companies operate multi-jurisdictionally, it can be difficult to anticipate court rulings on e-discovery. …