All posts tagged electronically stored information

It’s Your Turn! Vote Today for the National Law Journal’s ‘Best of 2016’

The polls are open, and it’s awards season. Whatever your persuasion, it’s your turn to vote. The National Law Journal recently announced the finalists for its ‘Best of 2016,’ and Kroll Ontrack is proud to be nominated in NINE categories!

  • Best end-to-end litigation consulting firm
  • Best end-to-end ediscovery provider
  • Best technology assisted review ediscovery solution
  • Best data and technology management ediscovery provider
  • Best data recovery solution provider
  • Best managed document review services
  • Best managed ediscovery and litigation support services provider
  • Best online review platform
  • Best case management software

From now until Friday, February 5, you can vote in the annual reader’s choice survey. This is your chance to rate the products and services you’ve been using in litigation. And it’s an opportunity for those of us in the industry to receive valuable feedback.

While you don’t have to answer every question, we greatly appreciate your support and your feedback – thank you for taking the time!

It’s time to vote.

What US Legal Ediscovery Professionals Can Learn from the New UK Rules of Civil Procedure

What U.S. legal ediscovery professionals can learn from the new UK rules of civil procedure

In the last year, Americans have had a great deal of exposure to our British ally across the pond: we caught glimpses of the Queen’s Diamond Jubilee, we were awed by the London Olympics, and don’t even get us started about Downton Abbey. In 2013, ediscovery enthusiasts have something new to witness from our British counterparts – the updated UK Rules of Civil Procedure (CPR), which went into effect on April 1, 2013.

Significant Ediscovery Themes

Overall, there are a handful of significant ediscovery themes that come with these new civil procedure rules: proportionality, case management and budgeting, early and efficient disclosure, and the emphasis on the critical role of technology.   Below is a breakdown of some of the new provisions as they relate to ediscovery (or “edisclosure” as they call it in the UK).

The key concept underpinning the change in the UK is that of proportionality when it comes to litigation costs, and this is now made clear in the “overriding objectives” of the rules (Rule 1.1 of the CPR). It speaks volumes that this rule was amended to enable the “court to deal with cases justly and at a proportionate cost.” Interestingly, the new UK rule explicitly uses the word “proportionate,” while the US Federal Rules of Civil Procedure (FRCP) fails to explicitly include the term. US parties continue to struggle with proportionality, especially when large volumes of electronically stored data (ESI) are involved. Currently, there is much discussion in the US as to whether the US rules are in need of a change similar to that which has taken place in the UK.

Case Management and Cost Management Powers

Part 3 of the revised rules in the UK provides the court with new case and cost management powers. The most important section requires the parties to file a budget early in the case, which allows the courts to actively manage cases within the parameters of these budgets. The court may make at any time a “costs management order” to control the parties’ budgets. Only costs that have been budgeted for and approved by the court in advance will be recovered at the end of a case by the successful party. As a result of these new rules, UK lawyers must now consider disclosure much earlier in the process, scope their projects more carefully, and cooperate with opponents sooner. While American lawyers must “meet and confer” early on with regards to the scope of discovery, there is no formal requirement in the US to submit a litigation budget as is now required in the UK.

UK lawyers must also now file a formal disclosure report early on in the case, which sets out the option chosen and describes the documents and a rough estimate of the costs of standard disclosure. In the UK, the old forms of CPR 31.5 and 31.6 set out the default rules for standard disclosure, which require each party to examine all of their own documents and pick out the ones that will help or hinder any party’s case. This approach has become untenable; the costs of analyzing the enormous volume of electronically stored information can exceed the value of the case itself. However, the new Rule 31.5 provides a menu of disclosure options for the court’s disclosure orders, which provide for a more tailored approach in meeting the overriding objective of proportionality. These range from no disclosure to full blown train of enquiry disclosure with issues-based disclosure and reliance-based disclosure somewhere in between.

The option in the new UK CPR most likely to garner debate broadly states that courts can issue “[a]ny other order in relation to disclosure that the court considers appropriate.” Concerns swirling around this new language suggest that it could lead to a “key to the warehouse” approach by which each party hands over all non-privileged documents from which the other side can pick and choose what it needs at its own expense. Such options, as now standard in in the UK CPR, are also churning in the US, as courts look for flexibility in adopting tailored approaches to ediscovery given the specific circumstances of the case type and volume of data at issue.

Leveraging Technology in EDiscovery Litigation

As such provisions break new ground in the UK, these new rules emphasize one theme applicable to UK and US legal professionals alike – it has become essential to competently leverage the power of technology to manage discovery in litigation. From litigation databases in the “cloud” to Technology-assisted Review (TAR), new technology developments will continue to emerge that make proportionality achievable, keep litigation costs within budget, and protect privileged information from disclosure.

Want to hear more about the new UK rules directly from UK legal professionals?  Join Kroll Ontrack on April 12 for a webinar “Jolly Good Updates: New UK Rules of Civil Procedure and What the US Can Learn.” For this webinar, KrollNew UK Rules of Civil Procedure and what the US can Learn Ontrack is partnering with ACEDS to bring you what promises to be a great discussion!

Sign up here: http://www.aceds.org/jolly-good-updates-new-uk-civil-procedure-rules-and-what-the-us-can-learn/

Cost-Shifting in the Era of Big Data

Ediscovery - Cost-shifting in the era of big data ediscovery

As children, we’re taught the importance of fair play. As adults, we often learn that “fairness” is a rather amorphous concept. In litigation specifically, what’s “fair” tends to vary greatly by context, circumstance, and the arguments of the individual asserting that something is (or isn’t) fair.

In the context of ediscovery, however, the Eastern District of Pennsylvania sent an important message to litigants in Vaughn v. L.A. Fitness: “[D]iscovery need not be perfect, but discovery must be fair.” In Vaughn, the court asserted that “[D]iscovery burdens should not force either party to succumb to a settlement that is based on the cost of litigation rather than the merits of the case” and ordered the plaintiffs to pay for additional discovery in a pre-class certification dispute.

Ediscovery – Cost-shifting Trends for Big Data

Although Vaughn’s holding applied specifically to pre-class certification discovery, the opinion follows a growing trend of courts increasingly turning to cost-shifting to more equitably distribute the cost of Electronically Stored InformationBig data cost-shifting: Cisco, the dawn of the zettabyte era (ESI) production between parties. Further, the notions advanced by Vaughn will likely continue to find footing as data volumes proliferate. Since the advent of the microprocessor in 1971, the volume of data has exploded. In 2012, the amount of global data reached approximately 2.8 zettabytes (ZB), and by 2020, the digital universe is expected to reach 40ZB—enough information to fill over a half trillion 32GB tablet computers. Naturally, as data volumes increase, so do the amounts of ESI subject to litigation, as well as the costs associated with production.

Although the likelihood of cost shifting in big data ediscovery is on the rise with big data, legal expertise and advocacy are still necessary. Not all arguments for cost-shifting are a slam dunk, and the presumption that the producing party pays remains. Parties requesting cost-shifting must bolster their arguments with sufficient facts and figures to prove that the traditional presumption would prove burdensome or inequitable. Otherwise, you might find yourself dejectedly (and perhaps mistakenly) clinging to the belief that life simply isn’t fair.

View the new Kroll Ontrack cost-shifting infographic.

Preserve Electronic Evidence, Preserve Justice

For the last decade, electronically stored information (ESI) has been an increasingly dominant source of evidence in civil litigation as business communication has shifted to electronic media. But the as the heart-wrenching investigation into the death of Caylee Anthony continues to unfold, it demonstrates that the value of ESI is no longer relegated to the world of civil litigation.

In any investigation, evidence is collected wherever human interaction occurs. As electronic communication has become increasingly personalized, intimately personal conversations now commonly take place over once highly impersonal media such as text messages and social media networks. For criminal investigators, this makes the preservation and collection of evidence from electronic media as critical as that of physical evidence from the crime scene itself.

In the ongoing, highly sensationalized trial of Casey Anthony, investigators and criminal prosecutors are using ESI to demonstrate everything from event timelines to intent and motive. Following the arrest of Casey Anthony in the investigation into her daughter’s disappearance, law enforcement in central Florida seized and forensically searched electronic devices ranging from cell phones to digital cameras. The investigation revealed a trove of electronic evidence that has proved vital to the prosecution’s case.

Photographs and their metadata, extracted from seized digital cameras, have helped piece together the mysterious timeline surrounding Caylee’s disappearance, while e-mail and chat conversations have been presented to help elucidate motive and intent. Perhaps the most damning of all, forensic investigation has revealed a list of internet search terms and the web browsing history from around the time of Caylee’s disappearance. Searches for words such as “chloroform” and “head injuries” were discovered by reconstructing deleted internet history files from the hard drive of Casey Anthony’s computer. This was done by forensically imaging the computer’s hard drive, and then analyzing the unallocated, or “slack space” for information marked for deletion. Unbeknownst to the layperson, and to the dismay of the would-be spoliator in this case, simply deleting information from the operating system does not permanently remove data. Instead of actually overwriting the information, deleting data only causes the computer to designate it as overwrite-able. Furthermore, because deleted data is broken up into bits and pieces spread all across the hard drive, it can take a considerable amount of time until all of the information is completely lost. A skilled forensic investigator can quickly analyze storage media and retrieve this information from the slack space.

When collecting any ESI, and deleted data in particular, time is of the essence and the skill of the forensic investigator is critical. Like other forms of trace evidence – such as blood, fingerprints, tire tracks, etc. – electronic evidence is extremely fragile; the slightest inconsistency in the preservation and collection process can render even the proverbial “smoking gun” wholly inadmissible. Preventing this requires the use of highly skilled and experienced forensic investigators who can properly preserve ESI and collect all the relevant data while maintaining a strong chain of custody and ensuring the defensibility of the evidence at trial.

Cases like the Casey Anthony trial illustrate both the growing prevalence and vital importance of ESI in the criminal context. Every trial directly depends upon the quality of evidence presented. If justice is to be ensured as we continue moving deeper into the era of electronic evidence, criminal attorneys must quickly begin taking cues from their civil counterparts and learn how to effectively manage ESI.

When Duty Calls and When It Doesn’t – Revisiting the Duty to Preserve

When Duty Calls and When It Doesn’t – Revisiting the Duty to Preserve

If anyone doubts that those who don’t learn history are doomed to repeat it, maybe ediscovery case law can change your mind – a great place to start is with cases dealing with spoliation and failure to preserve relevant evidence. Since the Zubulake decisions established that a duty to preserve arises when a party reasonably anticipates litigation, the “duty to preserve” issue has been litigated too many times to count. In addition to burdening parties and the court systems with the extra time and costs it takes to litigate discovery related issues, these types of cases all too often result in sanctions against the duty-breaching party. Reasons for failing to preserve ESI are varied, but because it is an undying source of litigation, it is certainly worthwhile revisiting exactly what the standard requires as well as a recent decision interpreting its nuances.

Zubulake established that the duty to preserve electronic evidence begins when a party “reasonably foresees” that the evidence may be needed in litigation. In discovery, evidence is a broad term, referring to anything that may be relevant to or probative of the issues in a case, regardless of whether it will ultimately be admissible in trial.

To Whom is the Duty Owed?

After Zubulake, many cases have sprung up applying and clarifying standards for spoliation sanctions across jurisdictions. Other recent cases have clarified when the duty to preserve attaches. For example, in In re Delta/AirTran Baggage Fee Antitrust Ligitation, 2011 WL 915322 (N.D. Ga. Feb. 22, 2011), the court clarified to whom the duty is owed: only to the specific party with whom litigation is anticipated. The court found that the defendant owed a preservation obligation to the Department of Justice (DOJ) pursuant to a Civil Investigative Demand. However, the defendant’s preservation obligation to the DOJ did not extend to the plaintiff who sought sanctions for failure to preserve in a case arising several months later against the same defendant. Even though relevant evidence might have been destroyed while the defendant’s obligation extended to the DOJ, the court denied the motion for sanctions because the DOJ had not filed a motion and the defendant’s duty to the plaintiff preserve ESI had not yet triggered despite general, industry-wide speculation of litigation against the company at the time.

Prudent & Preventative Planning

Even with Zubulake and subsequent cases, there may not be a bright-line moment in every [anticipated] case when the duty springs into existence. If a court later determines that a duty existed, however, it is too late to go back and pre-start data preservation activities. For that reason, it is of paramount importance to implement smart preservation practices (while simultaneously disposing of unnecessary/non-responsive data).

Proper conduct when a duty to preserve arises will not happen without proactive planning. In re Delta/AirTran Baggage hints at another tricky point as well. When multiple litigations are active, litigation holds may overlap concurrently. When a case concludes and a litigation hold may be lifted, it is important to verify whether data must still be preserved in the ongoing case. To this end, proactive planning will also help the organization track its information and know when a hold can be lifted.

The early stages of planning involve determining what data the company has and considering what type of data might be needed in future litigation. Secondly, it is necessary to learn and track where the data exists through data mapping. Decisions must be made regarding how long to keep different types of data, taking into consideration the organization’s needs with regard to business use as well as regulatory and legal requirements. A data retention/destruction policy and process should also be implemented. These steps will make it dramatically easier to identify and collect the relevant data once a specific instance of litigation is “reasonably anticipated” and the litigation hold is in place.

Are “Document Dumps” Unconstitutional?

Are “Document Dumps” Unconstitutional?

Producing mountains of electronically stored information (ESI) is an unfortunate hallmark of the ediscovery process, but when productions are especially voluminous or unmanageable, they earn the ignominious title of “document dumps.” In civil litigation, these are frowned upon as a form of discovery misconduct and may be considered as a factor for imposing sanctions. In criminal proceedings, however, the stakes can be much higher, and the prospect of sanctions provides cold-comfort for individuals who may soon find themselves behind bars because a document dump prevented them from preparing a full defense.

In United States v. Salyer, 2011 WL 1466887 (E.D. Cal. April 18, 2011), U.S. Magistrate Judge Gregory Hollows declined to order the government to contribute to the creation of a common, searchable database to hold the government’s production of roughly 1-2 terabytes of information. The “mass of documentation” was collected over a ten year investigation into alleged racketeering, fraud and antitrust violations by the defendant, a former CEO of a large food product distributor. The court reasoned that the lack of clear benefit to the parties, the substantial costs involved and absence of clear authority on the matter militated against it recommending such action.

The Southern District of Florida, however, saw a similar situation differently in U.S. v. Perraud, 2010 WL 228013 (S.D. Fla. Jan. 14, 2010). In this case, District Judge William Zloch adopted the Report and Recommendation by Magistrate Judge Robin Rosenbaum ordering the government to direct the defendants to the “universe of 5,000 records” from which it planned to rely and, additionally, to provide them with both an exhibit list and hard copies of the exhibits within ten days prior to trial.

The court primarily focused on Federal Rule of Criminal Procedure 16(a)(1)(E), which requires the government to provide defendants access to information that may be presented against them at trial. The court noted that while the plain language does not require the government to specifically “identify the various subsets of evidence” it plans to use at trial, it also “does not endow the government with the right to drown a defendant in a sea of irrelevant, or even tangentially relevant, documents” and if it did, this “might well present problems under the Fifth (due process) and Sixth Amendments (speedy trial).” However, the rule was saved, the court held, by Rule 16(d)(1) which permits the court to grant appropriate relief with respect to discovery for good cause.

Applying this constitutional failsafe to the circumstances of the case, Judge Rosenbaum held that legal authority including, inter alia, the defendant’s constitutional rights to due process and a speedy trial compelled the government to – at a minimum – narrow the production scope to a manageable level. While this may raise concerns that the government’s prosecution strategy could be revealed, the court noted the approach taken in United States v. McDade, 1992 WL 382351 (E.D. Pa. Dec. 11, 1992) directing the government “to the best of its good-faith ability, to tell the defense of any discrete parcels of material that it [did] not plan to use at trial” should mitigate this concern (emphasis in original).

Procedural due process is basically a guarantee that any process which seeks to deprive someone of life, liberty or property will be fair to the defendant. Concomitantly, the Sixth Amendment requires the entire process to be expeditious. Together, the two ensure a fair and accurate result is reached. Document dumps, however, fly in the face of both requirements, as they unquestionably cause delay and burden. In the criminal context, it is not hard to see how this could lead to an impermissible miscarriage of justice. Even with document dumps aside, as the term tends to connote a least a minimal level of culpability, the volume of ESI as well as the costs and time to manage it are rapidly increasing in all cases.

The U.S. courts have traditionally viewed justice as being furthered by full disclosure, but when is it enough, and what happens when we have too much?

Pennsylvania Proposes Amendments to Civil Procedure Rules

Proposed Recommendation No. 249: Proposed Amendment of Rules 4009.1, 4009.11, 4009.12, 4009.21, 4009.23, and 4011 Governing Discovery of Electronically Stored Information with Explanatory Comment

According to this proposed recommendation, the “core of the proposal is an explanatory comment, which provides that the discovery of electronically stored information will be governed by the same considerations that govern other discovery.” In addition, the stated purpose of this recommendation is to provide the trial judge and counsel with guidance to resolve ESI disputes according to the general principles of Rule 4011 and not pursuant to the Federal Rules of Civil Procedure and federal case law.

Proposed Changes – Rule 4009.1. Production of Documents and Things. General Provisions.

Amend 4009.1(a) to include: “electronically created data, and other compilations of data from which information can be obtained, translated, if necessary, by the respondent party or person upon whom the request or subpoena is served through detection or recovery devices into reasonably usable form)] and electronically stored information, or to inspect, copy, test or sample any tangible things or electronically stored information” in the definition of discoverable information.

Amend 4009.1(b): A party requesting electronically stored information may specify the format in which it is to be produced and a responding party or person not a party may object. If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form.

Proposed Changes – Rule 4009.11. Request Upon a Party for Production of Documents and Things.

Amend to include the following note: A request seeking electronically stored information should be as specific as possible. Limitations as to time and scope are favored, as are agreements between the parties on production formats and other issues. See also Rule 4009.1 generally regarding electronically stored information.

Proposed Changes – Rule 4009.12. Answer to Request Upon a Party for Production of Documents and Things; Rule 4009.21. Subpoena Upon a Person Not a Party for Production of Documents and Things. Prior Notice. Objections; Rule 4009.23. Certificate of Compliance by a Person Not a Party. Notice of

Documents or Things Received 

Amend rules to include the following note: See Rule 4009.1 regarding electronically stored information.

Proposed Changes – Rule 4011. Limitation of Scope of Discovery [and Deposition]

Amend Rule 4011: Include discovery of the ESI in the scope limitations of discovery

Explanatory Comment – Electronically Stored Information

A. No Importation of Federal Law

Though the term “electronically stored information” is used in these rules, there is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information. The treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law as discussed in further detail below. (Emphasis added).

B. Proportionality Standard

As with all other discovery, electronically stored information is governed by a proportionality standard in order that discovery obligations are consistent with the just, speedy and inexpensive determination and resolution of litigation disputes. (Emphasis added). The proportionality standard requires the court, within the framework of the purpose of discovery of giving each party the opportunity to prepare its case, to consider: (i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; (ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case; (iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information; (iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and (v) any other factors relevant under the circumstances.

C. Tools for Addressing Electronically Stored Information

Parties and courts may consider tools such as electronic searching, sampling, cost sharing, and non-waiver agreements to fairly allocate discovery burdens and costs. (Emphasis added). When utilizing non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties. See, e.g., Fed. R. Evid. 502(c)

D. Eliminating References to “Depositions”

The elimination of specific references to “depositions” in Rule 4011 is not intended to exclude depositions from the scope of this rule. The reference was eliminated because there was no reason to call out this one form of traditional discovery among many.

To stay up-to-date on Pennsylvania’s Civil Procedure Rules along with the rest of the 49 states, visit Rules & Statutes.

Oklahoma Amends Code of Civil Procedure

On November 1, 2010, amendments were made to Oklahoma’s Code of Civil Procedure that address electronically stored information. These amendments are largely analogous to the Federal Rules of Civil Procedure, without a mandatory meet and confer conference.

Oklahoma is certainly not the first state to amend its civil procedure rules to reflect the infiltration of electronically stored information in the modern discovery process. Indeed, currently 26 states have adopted state rules that are substantially analogous to the FRCP amendments. In addition, there are currently 4 states that are considering ediscovery rule amendments to varying degrees. For example, New York currently does not have legislation rules explicitly governing ediscovery, however, Bill A06000 was introduced to the New York state legislature on February 23, 2009 (note: this bill is not active in the current legislative session). This bill contains proposed amendments to the Civil Practice Law Rules (CPLR) that would change e-disclosure rules in civil cases, with the primary intention to clarify the treatment of ESI prior to the filing of a note of issue in civil cases. Bill A06000 does not include an amendment to address meet and confer conferences, which is common in a few other states that have adopted amendments largely analogous to the FRCP, including Minnesota, Ohio and Virginia.

Finally, a small handful of states follow the “Texas Model.” Texas added Rules 196.3 and 196.4 to its Rules of Civil Procedure in 1999, marking it the first state to adopt rules explicitly governing ediscovery. Texas’ rules differ in some key regards from the Federal Rules of Civil Procedure, and both Idaho and Mississippi have adopted rules similar to the Texas model

The Texas Rules of Civil Procedure do not require a mandatory meet and confer conference, but rather provide that the court may direct parties and counsel to appear before the court. In addition, there is no rule equivalent to a safe harbor provision. Rather, the Texas rules include a presumption that costs for sanctions motions shall be borne by the offending party unless circumstances make an award of expenses unjust. There is also a difference between the Texas rules and the FRCP regarding production. Texas Rules of Civil Procedure 196.4 requires the requesting party to specify the form in which it wants ESI produced and the responding party must state an objection if it cannot produce the ESI in that form through reasonable efforts. The court must also order the requesting party to pay expenses of any extraordinary steps required to produce the information if the court orders the responding party to comply with the request. Idaho and Mississippi did not include this mandatory cost-shifting rule in their amendments, but rather included a discretionary cost-shifting provision.

In sum, state rules vary widely from coast to coast, and smart litigants must understand the rules and regulations involving the exchange of ESI in any state that has primary or persuasive authority over a matter. Education is essential and Kroll Ontrack provides the resources to help you stay ahead of the game.

Archiving Today Means Less Headaches Tomorrow

A significant majority of business communication is conducted via e-mail. Once other forms of electronically stored information are calculated into the mix, organizations that are heavily regulated and targeted in litigation face an increasingly significant risk regarding information management and storage. The growing data volumes coupled with decreased human resources in IT and other corporate departments require a proactive approach to managing data. Corporations must begin taking steps now to manage the mountainous volume of electronically stored information (ESI), while ensuring proper preparedness to comply with various regulations and litigation discovery rules.

Why Is Archiving Important?

Archiving enables efficient records management that not only facilitates business and storage efficiency, but also ensures compliance with legal and regulatory requirements. An effective e-mail and file archiving solution will allow legal, IT and compliance teams to appropriately preserve, manage, locate and produce relevant ESI, in addition to allowing for quick enforcement of the company’s document retention policy. An archiving tool allows the organization to update and modify retention and disposal parameters as the needs of the business and regulatory requirements evolve, and ensures that the policies are consistently applied across the whole enterprise.

Implementing an effective archiving system also eases the strain on organizations’ storage requirements and IT resources. An important component of an archiving tool is the ability to reduce the organization’s storage footprint with compression and single-instance storage via de-duplication technology. Archiving tools can also reduce user reliance on local storage, such as individuals’ personal storage tables of messages (.pst files), by housing retained e-mails and attachments in centrally managed repositories.

In addition to storage concerns, human resources are tight in IT departments. According to a 2010 Gartner report on IT spending, 50.3% of respondents cut IT head count by 1-15%, while 12.4% of respondents cut IT head count by more than 15%.1 This decreased head count further strains already overburdened IT resources and makes responding to incidents outside the normal business operations and responsibilities far more difficult. Deploying appropriate archiving technology to better manage the storage, retention and disposal of business records will provide a much needed helping hand for IT departments.

Electronic Discovery Impact

In addition to the aforementioned qualities archiving systems must have, an important functionality is the ability to administer legal holds. Failure to adequately issue hold notices and properly preserve information may create trouble for an organization in the courtroom. As demonstrated in Kroll Ontrack’s 2009 Year in Review report, 39% of the cases in 2009 involved sanctions, and of those, almost 67% addressed sanctions regarding preservation and spoliation issues. An archiving solution will facilitate efficient identification of potentially relevant ESI through enterprise-wide searching and enables immediate implementation of litigation holds, preventing liability for preservation issues.

Courts are not tolerating the excuse that a company lacks the technological capability to retrieve data in this modern age. This point is clearly demonstrated in a recently released opinion from the Western District of Washington, Starbucks Corporation v. ADT Security Services., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009). In this case, the defendant argued against producing e-mails stored in an antiquated format. Originally, an IT employee cited estimates of $88,000 to produce the emails but then decided to “up the ante” to $834,285. The court was incredulous that a company as sophisticated as the defendant would fail to migrate data to its now-functional archive system, and ordered the defendant to “implement an immediate plan to make copies of the archive…disks, and to save them to an appropriate storage medium.” Furthermore, the court explained that even if the information was ruled not reasonably accessible, good cause existed to order production. Proper retention management (in this case scheduled disposal) could have alleviated the issue in the first place. This case makes it clear that if data is being stored, even in an antiquated form, the courts will no longer tolerate poor or outdated IT infrastructure as a reason to not order the production of that ESI.

Conclusion

It is far more cost-effective for organizations to proactively implement archiving technology and properly manage retention and litigation holds, rather than incur the costs to file and defend motions for preservation failures later. In addition, it is important to remember that the courts do not require perfection, but rather expect necessary steps to be taken to properly preserve relevant records for collection, review and production. See Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010). Implementing an archiving system is a great proactive step toward reducing litigation expenses, while strengthening defensibility through a repeatable, well-documented process.

 
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