Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2011-12-13 11:21:27Format, images and links may no longer function correctly. I have spent countless hours over the last 5 years searching for the cure to many of my e-discovery ills: technology that will hold data in place 
for purposes of complying with preservation obligations in litigation. I am not referring to sending legal hold notices to custodians of data or self-collection. I am referring to actually locking down data…In a diverse technology environment…Without interrupting the business…And while we’re at it, can we apply retention policies?
Based on my own experience and on multiple discussions with in-house practitioners, I strongly believe in-place preservation would take many of the headaches out of the preservation burdens faced by serial corporate litigants. Last week at the The Exchange event in Los Angeles Laura Kibbe, a thought leader in the industry, brought the topic up in one of the sessions. While acknowledging that we simply aren’t there yet, she eloquently and passionately urged that we, as part of this industry, need to be pushing to move in the direction of preservation in-place technology. So, this is my public plea to software developers.
There are multiple problems related to preservation in our current environment. So much so that there are ongoing activities and discussions surrounding amending the Federal Rules of Civil Procedure to address preservation scope.
In a nutshell, preservation is a challenge in that it is difficult for a litigant, or entity that reasonably anticipates it will be a litigant, to fully develop scope of the preservation obligation at the early or pre-stages of litigation. Scope oftentimes morphs as the case develops further, and parties are placing very broad preservation demands on their opponents. As a result, corporations typically cast the preservation net widely which oftentimes captures a significant amount of data that is not relevant. Because collection is the most conservative method of preservation, the cost of preservation quickly adds up for corporations managing hundreds, thousands or tens of thousands of legal matters each year.
Once preserved by collection, the next phase in the discovery lifecycle for data is processing. In order to cull down to the data that should be sent to processing, ECA and review, parties either re-collect a more arrow subset of the preserved data or process the entire collected set.
Both of these solutions result in additional cost.
Yes, I know there are document management and archive systems that can hold files in place. However, large organizations don’t strictly use these systems for all of their data. Rather, they have mixed environments that contain one or more document management systems, archives, file shares, SharePoint, structured data systems, email, social media tools, mobile devices, and the list goes on.
Yes, I also know that there are tools on the market that purport to have the ability to lock down files in place. With these tools, however, there is one main problem and one main limitation. The problem is that they require the “keys to the kingdom” from a security standpoint. Most IT departments in corporations will not allow legal department personnel this type of access. (They are even quite limiting with these rights within their own department.) The limitation is the third-party products to which these tools must connect. For example, due to Windows limitations as to file shares, these tools merely flip the “read only” switch which is something the end-user can switch back. As a result, even with these tools in place the best practice is to preserve by collection. So, we are back to square one.
I understand there are significant complexities faced by software developers in this arena – many of which are not addressed in this
blog (e.g., the “Cloud”). At the same time, I agree with Laura. Consider this my part in the push for in-place preservation.
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