The proliferation of electronic information and social media has turned the pre-trial process of discovery into a “gotcha game,” according to attorneys with the Gibbons e-discovery task force, who recently hosted the 5th Annual Gibbons E-Discovery conference in Manhattan. The 2010 Pension Committee decision in New York took an aggressive approach to “litigation holds”—i.e., a party's failure to issue a written legal hold notice constitutes gross negligence per se, the court said, supporting an inference that the party has destroyed relevant evidence to the prejudice of its opponent, and justifying sanctions unless the party rebuts the presumption. Subsequent 2011 decisions have softened the strict rule somewhat, says a Gibbon’s write-up of the conference, but the discovery process in the Information Age continues to be a rabbit-hole matrix of litigation protocols and the preservation and production of e-evidence, including spoliation issues, sanctions, waiver of privilege, and—most importantly for economic damages experts—how to request and find, amidst the myriad of data produced, the critical financial information that they need to build their valuation models and conclusions.

To find out how: BVR’s Online Symposium on Litigation and Economic Damages continues on Tuesday Dec. 13 with Getting the Information You Need: A Guide to Electronic Discovery, featuring attorneys Richard Gelb and Daniel Gelb (both Gelb and Gelb).