A showing of good faith has always been necessary when responding to discovery or in response to any other court-ordered instruction; however, the burden of showing good faith is now significantly greater on the part of the responding party. Counsel can’t claim that they didn’t know about those backup tapes stored in a closet or that they didn’t have proper access to IT personnel. Counsel must have proactive conversations with ESI custodians and IT stewards to create and maintain documentation regarding what preservation actions were taken when the obligation arose, how chain of custody was assured, and how both custodians and relevant ESI repositories were systematically identified.

• APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D. Ill. Oct. 12, 2007).
• Baker & Hostetler LLP v. United States Department of Commerce, 2006 U.S. App. LEXIS 31454 (D.C. Cir. Dec. 22, 2006)
• Butler v. Kmart Corp., 2007 WL 2406982 (N.D. Miss. Aug. 20, 2007)
• Emmerick v. S&K Famous Brands, Inc., 2007 U.S. Dist. LEXIS 59147 (E.D. Tenn. Aug. 6, 2007)
• In re Seroquel Products Liability Litigation MDL Docket No. 1769, 2007 WL 2412946 (M.D. Fla. Aug. 21, 2007).
• United Medical Supply Co. v. United States, 2007 U.S. Claims LEXIS 207 (Fed. Cl. June 27, 2007).

How Fios can Help

Fios can help by through proactive content mapping and discovery readiness planning, helping clients demonstrate good faith behavior through proactive disclosures of steps taken to preserve and collect ESI. We also assist clients in preparing for FRCP 26(f) discovery conferences, helping them negotiate a "fair and reasonable" scope of discovery relative to their industry, litigation profile, and content.

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