Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2010-02-25 13:05:21 True story – while waiting for workers to fix the heat in my building on a freezing Boston day, I found myself making small talk with the woman that owns the unit next to me. Turns out, she’s a litigator. I ask if she’s ever been involved with eDiscovery and she rolls her eyes with a knowing grin. I tell her that I help companies with eDiscovery strategies and have experience with records management and archiving. To my surprise, she says “Archiving?! I tell all my clients that archiving is bad. If you can’t find the data, you don’t have to discover it and it can’t come back to bite you. Archiving is a huge mistake.” I just stared her and changed the subject, my blood beginning to boil.This story is but one example of what is wrong in the eDiscovery industry. There are some – I like to call them ostriches because their heads are planted firmly in the sand – that believe that if we don’t retain information, it will be gone and we won’t have to risk discovery of it. Hello!!! Anyone that has dealt with technology knows that getting rid of information is difficult – it can exist in so many places and someone will find it when you least want them to. To the ostriches, I say that the notion that lawyers can negotiate or argue their way out of bad information management practices is akin to saying that Enron’s management was really smart and had the best interests of the world at heart. Sorry folks, but let’s face reality. We all know that digital information is accessible – it is time to treat it as such. Just spend the money to manage it instead of paying lawyers to unsuccessfully fight the discovery of it. While some savvy lawyers might be successful keeping the problem at bay in the short-term, it is easier (and ultimately cheaper) to just suck it up and do the right thing now. Remember how that inaccessibility argument worked for Morgan Stanley when it came to back-up tape (not well).Finally, some common sense is coming to the fore. Unfortunately, it comes six years after Judge Shira Scheindlin’s landmark Zubulake decision, and it comes from Scheindlin herself revisiting that decision in a case now known as “Montreal Pension.” (I say “unfortunately” because the implications of Zubulake were common sense – organizations should proactively manage information and not try to hide behind arguments of inaccessibility when we all know just how accessible digital information is). In Montreal Pensions, Scheindlin points out the need for good litigation hold process management and execution. She also points out some elements that could lead to a finding of gross negligence (and therefore subject an organization to sanctions and/or adverse inference). These elements include:- Failure to issue a written legal hold.
- This highlights the need to better manage the litigation hold process. Organizations can make this element easy by having all potential custodians loaded into a system where legal can easily select them and have the system send out an email informing them of the litigation hold.
– Failure to identify key players and ensure that their digital and paper information are preserved.
- This is where many organizations find real difficulty. The information of these key players may be stored in many different places. Most organizations do not have a good sense of where all the information is and so they take snapshots of a user’s machine – in a lot of litigation, this snapshot is overkill as it captures everything on the machine, including things like system files. Some organizations rely on the key players to upload their data, but they need to realize that not all players know where their information is and not all are cooperative custodians.
- To make matters worse, discovery can take so long that organizations wind up over-preserving and then processing and reviewing way too much data.
- Proactively mapping data and bring process management tools to the litigation hold process can help organizations more quickly execute the actual hold as well as prove all the steps that were taken along the way.
– Failure to stop destruction of the information of former employees that may be relevant.
- Clearly, the information created by former employees can be very pertinent to matters that come up down the road. This obviates the need for better records and information lifecycle management. Organizations need to be able to keep information based on a combinations of factors such as content (keyword, phrase), metadata (author, recipient, sender, date), and user-driven categorizations (such as records declarations). Organizations are not likely to get away with a blanket policy that says former employees’ information is deleted after 1 year because not all employees have equal stature and not all information has equal value.
– Failure to preserve backup tapes that are the sole source of relevant information.
- Another “no-brainer” here. Too many organizations have retention policies that are not married with backup tape rotation management. If we learned nothing else from the Morgan Stanley case years ago, it’s that we cannot argue that backup tapes are not accessible.
- This only further illuminates the need for solid information lifecycle management.
Any organization that ignores information lifecycle management from this point forward is stupid – plain and simple. To argue that eDiscovery is not a concern only categorizes an organization into the ostrich category. It’s time to get the heads out of the sand and start building out an infrastructure that supports finding and collecting potentially relevant information quickly and to manage the process for retaining and preserving this information.