Migrated from eDJGroupInc.com. Author: Babs Deacon. Published: 2013-06-21 07:15:50  Last week was the Today’s General Counsel Institute “The Exchange” event in Chicago.  I hadn’t been to one of their events in a while and I expected the discussion to range across all phases of discovery, but actually it centered around Preservation.  And why not?  If you don’t get the identification/preservation right it can be “Tilt” (also known as Spoliation), “Game Over!”  “Do not pass go,” go directly to monetary sanctions or worse: an adverse inference.And what a great environment to have a frank conversation about Preservation issues!  Today’s Corporate Counsel – The Exchange, is run by Neil Signore (Sr. VP & Managing Director, Today’s General Counsel Magazine and Institute) in a format he, George Socha (Socha Consulting and EDRM.net) and Browning Marean (Partner at DLA Piper US LLP) created about 4 years ago.  The attendees are corporate and law firm professionals who are wrestling with eDiscovery issues, as well as consultants and sponsors.  The success of this conference is that it’s short, the invite list is exclusive, the moderating is superb and everything said is off-the-record.What happens at The Exchange, stays at The Exchange which gives people a chance to participate, in a way they might not at the larger, more public conferences.  Browning Marean, the eminence grise of the eDiscovery community is about the best facilitator there is.  He keeps the discussion moving in a way that is stimulating and comfortable.  David Kessler (E-Discovery and Information Governance Lawyer, Norton Rose Fulbright) was his co-moderator and with his quick style, depth of knowledge and passion for the topic and eDiscovery case law, he was the perfect counter-balance to Browning in keeping the conversation lively and informative.In short, it’s exciting and safe.  Which means that there can be a true dialog between in-house counsel, law firm attorneys and other eDiscovery professionals.  The honest back-and-forth between in-house and outside eDiscovery attorneys related to shared responsibilities but differing perspectives was highly valuable.So what does this have to do with preservation?  Well the conference included several very experienced in-house counsel who could really talk about the difficulties setting up and running effective legal hold programs.  My colleague Mikki Tomlinson moderated some of these sessions, but even when the topic was about other aspects of eDiscovery, the conversation moved to how important and difficult it is to preserve data under an effective, repeatable process with all of its moving parts, organizational-cultural concerns, international cultural hurdles, and the need for cooperation and understanding between in-house legal and retained counsel.Mikki has been doing a great deal of writing, training and research about Legal Hold best practices and the maturity of legal hold programs this year.  Her survey on the topic, which is just about to culminate, is showing some interesting data points on how organizations are managing legal hold.  Consequently it is easy to focus on the negative, but there was one extremely positive idea shared at the conference that I can share.   One of the participants reminded us that Legal Hold can’t be all about the past.  Data maps, for example, shouldn’t always be an exercise in eDiscovery archeology.  Organizations are engaging with IT and other data stewards at various important stages in the life of information systems in order to gather information to set up what could be called a  “pro active data map” or “legal hold steward intake”.In these sorts of processes a new phase in the life of hardware or software such as purchase, implementation, migration or termination is referred to as a “project”.  A responsible person fills out a short form indicating if the project will impact the disposition of data in any way and answering questions intending to describe key characteristics of the system such as: What is it for? What are the dependencies?  Who will administer it? and What is the plan for its maintenance related to data retention and legal hold?A process such as this should obviously be rolled out with sensitivity to any possible business disruption, but the benefits at Legal Hold/Preservation/eDiscovery time are obvious to those of us in the trenches and to the TGCI participants.Babs Deacon can be reached at babs@edjgroupinc.com for offline comments or questions. Her 2013 research focus is on software and service provider selection.Find Babs at the following future events (please feel free to email to see if any passes or discounts are available):

  

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