From the Article’s Conclusion:
“Litigants and their attorneys must be proactive in how issues related to electronic discovery are handled. Being proactive does not mean cluttering the courts with automatic filings for preservation orders; it does mean, however, using the existing procedural framework to understand the capabilities and the limits of an opposing party’s computing infrastructure and policies. In this sense, the proposed amendments to the federal discovery rules that encourage the early recognition of potential issues concerning electronic evidence are a step in the right direction. In contrast, however, changes in the rules that permit litigants to place information out of reach through self-determined technological inaccessibility, or unquestioned document retention policies, increases the vulnerability of electronic evidence. The integrity of our legal system demands that courts and litigants understand their role in preserving the duty to preserve.”
The full text is available at http://papers.ssrn.com…