Posts Tagged ‘preservation’
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- February 8th
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eDJ’s Greg Buckles’ LegalTech Micro Briefs – Part 1
This was my first LegalTech where I could put on my analyst hat without needing to manage corporate clients or speaking panels. It brought home to me just how hard it was to switch mindsets and reminded me of the 2010 PBS special, “Digital Nation” that shattered my personal myth of multitasking. It is safe to say that I brought more to my hectic briefing schedule this year and took a lot more out of them as well. The other new element was taking digital notes on the iPad. Barry liked the Penultimate app, while I finally settled on PhatPad with the hope that I could leverage it’s handwriting recognition, photo and audio recording features.
posted at 11:09am on Feb 8th
- February 6th
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How Over-Preservation Starts and How to Stop It
“Let’s keep it anyway, just to be safe.” According to Craig Ball, this simple but mistaken mantra for lawyers is a password to open the door to over-preservation. Looking at email preservation, Ball details how understanding the mechanics of the process can jump-start proportionality in e-discovery before parties ever enter a courtroom. Ball looks at several options parties take when preserving email — from doing nothing and relying on message journaling or archiving systems to custodial-directed holds to “grabbing all mail” in one fell swoop — and weighs their attendant risks, benefits, and potential costs. What’s your firm’s approach to email preservation? If your answer is “I don’t know,” read this month’s LTN “Ball in Your Court” column, “What Causes Lawyers to Over-Preserve?” to persuade you to change your response. Image by biscotte
posted at 2:48pm on Feb 6th
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New Pippins v. KPMG Opinion Demonstrates Need for Uniform Preservation Rules
In her Feb. 3, 2012 opinion in Pippins v. KPMG LLP, (S.D. N.Y. No. 11 Civ. 377), District Court Judge Colleen McMahon denied KPMG’s request for relief from its obligation to preserve more than 2,500 hard drives of its former Audit Associates in the overtime wage case, at a cost claimed by KPMG to be $1.5 million or more. The plaintiffs sought relief under the Fair Labor Standards Act and New York law. KPMG’s failure to provide any information about or access to the drives doomed its argument that the value of the drives was disproportionate to the costs. Without any sense of what the value was of the information on the drives, the court could not undertake any balancing of burden vs. value. As stated by Judge McMahon, “KPMG is hoist on its own petard,” (Op. p. 20). In other words, traditional stonewalling tactics can backfire on a party trying to limit discovery by arguing proportionality; even the slightest cooperation would have put KPMG in a much better position. If there was a silver lining for those who oppose burdensome preservation obligations, it was that the court stated that, “[P]roportionality is necessarily a factor in determining a party’s preservation obligations” (Op. pp. 18-19), thereby siding against those who argue that proportionality governs production but not preservation. However, when she discussed when KPMG might be relieved of its preservation obligations “as far as this Court is concerned,” (Op. p. 16, emphasis in original) she cautioned in footnote 3 that, “This Court is not the only court involved.” Even if the Southern District of New York permitted the destruction of some of the drives at some point in time — perhaps after an examination of a sample of the drives or after further determinations of who all would be plaintiffs in the action — some other court could reach a different conclusion on essentially the exact same facts. For example, in addition to New York, auditing associates were employed in Florida, Nebraska, New Jersey, Texas, and Washington. This creates completely unpredictable and hence unreasonable risks and costs associated with preservation – there needs to be a uniform rule on this critical question as proposed by the Lawyers for Civil Justice and others.
posted at 9:26am on Feb 6th
- January 24th
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Reduce Over-Preservation: One Of Many Uses Of Technology
The Editor interviews Howard Sklar, Senior Counsel, Recommind Inc. Editor: As we enter 2012, what should law firms and corporations be looking out for? Sklar: There are going to be several drivers of both corporate and law firm action, and certainly on…
posted at 7:09am on Jan 24th
- January 10th
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Dodging a Bullet (For Now): No Harm, No Foul for Data Destruction
Check out “The Risks of Failing to Preserve Patent Prosecution Files,” an article I wrote for LTN’s website. It discusses a unique patent litigation remedy for spoliation claims. In Metso Minerals, Inc. v. Powerscreen International Dist., Ltd, the pla…
posted at 12:56pm on Jan 10th
- January 3rd
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Formal Legal Hold policies and process are not optional – even for “informal” information
“Here, a fine against [the company] serves the dual purposes of deterrence and punishment . . . Because [those responsible for spoliation] are the sole principals of [the company], a fine directed at [the company] will affect them directly.” Passlogix, Inc. v. 2FA Tech[i] What Happened? A partnership between two businesses failed, and litigation ensued. [...]
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posted at 1:00pm on Jan 3rd
- December 27th
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Practical QC in eDiscovery
One key element for transforming your eDiscovery from an ad hoc reactive fire drill into a mature, proactive business process is the development and implementation of formal Quality Assurance(QA) and Quality Control(QC). I have always viewed QA as tackling ongoing process improvement such as regular cross case comparisons, while QC tends to be checking on did the process perform properly. Basically, how can we make the process better versus did everything work right? When interviewing corporate client eDiscovery teams, everyone is conscious of the need for QA/QC, but the vast majority seem to feel that it is impractical or unrealistic given their tight deadlines, lack of resources and typical fire-fighter mentality. Some law firm clients have swung to the opposite extreme, with elaborate workflow, check lists, physical chain of custody forms and more. Their QC has grown out of reasonable proportion and their productivity suffers because their overall QA has been neglected. So how do we achieve a reasonable quality process without bringing the legal process to a halt?
posted at 10:02am on Dec 27th
- December 21st
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More Perspective Needed On eDiscovery Burden Argument?
At eDJ, we’ve been thinking a lot about the recent Congressional Hearing on The Costs and Burdens of Civil Discovery. Being deeply involved in the eDiscovery market, we hear every day from companies seeking to make discovery a more efficient process. We also work with companies seeking to put in place proactive information governance (IG) initiatives with the ultimate goal of making eDiscovery less of a reactive, expensive burden.
posted at 11:25am on Dec 21st
- December 20th
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More on the Preservation Discussion: It Still Comes Down to Cooperation
There has been a significant amount of discussion, both formal and informal, surrounding whether the Federal Rules of Civil Procedure should be amended as to preservation and sanctions. Some believe that the time is not yet ripe, while others have presented arguments to the contrary. There is, however, one common theme in the debates, blogs, papers and meetings: cooperation.
posted at 9:58am on Dec 20th
- December 19th
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Plaintiffs Have Their Own Duty to Preserve
While the focus of is often on the defendant’s information technology systems and data sources, litigants should not lose sight of the fact that … appropriate search for ); Qualcomm Inc …
posted at 9:00pm on Dec 19th