Playing "Gotcha" with ESI Rules

Wes Billingsley, writing in The Texas Lawyer" (and reproduced at Law.Com) put his finger squarely on the problem that both parties and lawyers are encountering under the FRCP e-discovery amendments. He wrote:

"Any rule changes can fall short of fixing every problem. This is the case for the FRCP amendments, as they relate to unwarranted spoliation claims of electronic documents. Ironically, the FRCP amendments were meant to clarify the rules and help parties avoid issues of spoliation; instead the new rules have placed electronic documents under a microscope, further escalating a trend of satellite litigation involving spoliation claims. "

Indeed, the discovery battle has become almost entirely about spoliation and preservation issues. Many case strategies appear to be structured in an effort to allow one lawyer to play "gotcha" with the opposing counsel and party. Many court decisions seem to be playing right into the hands of the gotcha lawyers by imposing strict, sometimes unrealistic standards on parties and punishing even slight transgressions. In the paper world -- when civility reigned -- there was a great deal of reluctance to dole out sanctions. Now, almost weekly a new reported decision comes forth with such punishment.

Where will it end? When courts and lawyers recognize that, notwithstanding todays tools, technology and lawyer training, production of ESI will not be perfect and mistakes will occur.