There was an old farmer who always took the trophy in the fishing tournament with the biggest catch. The new game warden became suspicious and demanded the farmer take him fishing. In the middle of the lake, the farmer pulls out a stick of dynamite, lights it and throws it into the water. Boom! When hundreds of stunned fish float to the surface, the farmer takes out a net and snags the biggest one. The warden is outraged. “You can’t do that!” he screams, “Do you know how many laws you’ve broken?” Calmly, the farmer lights another stick of dynamite, hands it to the game warden and says, “Well boy, you gonna talk or you gonna fish?”
Litigants look to lawyers for guidance in preserving electronic evidence, and lawyers, clueless about information technology, hand them a stick of dynamite and say, “go fish.”
We don’t seek to discover electronic information for the fun of it. We seek it because it’s revealing and probative evidence. Digital evidence that’s not preserved is digital evidence that can’t be used to combat market manipulation, Fair Labor Standards Act violations, corruption, sexual discrimination, data theft and other misconduct we must prove and punish.
Instead of learning to fish in a reasonable way—that is, learning to preserve electronic evidence in a measured, cost-effective fashion–the proponents of legislation ask Congress to ban fishing.
They justify their agenda on the false premise that diligent litigants taking reasonable steps to preserve data are being sanctioned. It’s a fish story. When you read the reported decisions, it’s clear that sanctions are being imposed only for disgraceful, often intentional, destruction of evidence. Those claiming the incidence of discovery sanctions is twice what it was a year ago are telling the arithmetic truth. What they don’t let on is that two times almost nothing is still almost nothing. Fact: The chance of being sanctioned for failure to preserve remains smaller than the chance of being struck by lightning.
Judicial oversight and sanctions are the principal incentives moving litigants and lawyers to adapt to modern evidence. Limit the powers of judges to sanction e-discovery abuse and you silence the best source of guidance we have in dealing with electronic evidence.
We must confront the fact that the high cost of preservation stems from the senseless, wasteful way we approach preservation, not the obligation to preserve. We can do better, and when it suits businesses to have information at hand, businesses know how to do it well. What businesses have not done is insist their lawyers understand information systems and approach preservation with confidence and competence.
In America, we fret about our dwindling pool of engineers and scientists; but, perhaps we don’t worry enough about lawyers’ refusal to adapt to a paperless world and how such intransigence prompts overbroad preservation efforts and unconscionable waste.
Until lawyers can competently and confidently advise, “Keep this, but don’t worry about that,” preservation will be dynamite fishing. Congress cannot legislate competence, but it can refrain from taking steps to protect incompetence. Limiting sanctions for failing to preserve electronic evidence would give safe harbor to incompetence and hamper efforts to sensibly balance the need for electronic evidence against the cost to preserve it.