Posts Tagged ‘litigation hold’

The legal hold requirement is vastly misunderstood in my opinion. I have run into many corporate counsels that have the opinion;”I just send and email out to anyone in my company that could have responsive ESI asking them to be sure not to delete any data about the following subjects”. Then, if the delete something they shouldn’t have, it’s their neck, not mine or the company’s.

Many (but not all) corporate legal types consider ESI retention management as the legal hold process. Not a bad thought but really falls short of a true corporate definition of the term. To records managers ESI retention management refers to the systematic retention and disposition of the organizations electronic business records; either for the day to day running of the business, regulatory compliance or litigation support. And in this case I believe the records managers are right.

I recently ran across a few articles on  U.K. developer CPC Group Ltd and Qatari Diar Real Estate Investment Co, which is the real-estate investment arm of Qatar’s sovereign-wealth fund. The decision was that Qatari Diar wrongfully backed out of a deal to redevelop London’s landmark Chelsea Barracks site after the plan was opposed by Prince Charles, a judge ruled.  

In the recent case; Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010), one of the discovery points made in the decision was what is the appropriate legal hold process to meet an organization’s legal hold responsibilities.

Iron Mountain Incorporated announced today the release of Stratify Legal Discovery® OnPoint, a new hosted eDiscovery offering that simplifies eDiscovery while reducing costs by delivering free processing and loading of unlimited data for early stage filtering to drive high-productivity review.  It enables attorney’s hands-on control of data from the start of a matter coupled with advanced analytics and filtering technologies using linear review methodologies while at the same time establishing a defensible process for selecting responsive data. A one-time fee starting at $500 per gigabyte pertains only to reviewable data.

I have always been told relying on backups for eDiscovery purposes is a costly and time consuming mistake.

Searching through backup tapes or even a disk-based backup for eDiscovery is difficult. Imagine restoring 22 200 GB backup tapes of your employee workstations and

Seven Strategies for Preventing eDiscovery from Making Your Life Miserable
How IT Professionals Can Get Ahead of the Curve

Date: Tuesday March 30, 2010
Time: 11 am PT/ 2 pm ET
Duration: One Hour

In Melendres v. Arpaio, CV-07-2513-PHX (D. Ariz. February 11, 2010) (UNPUBLISHED),  U.S. District Court Judge G. Murray Snow granted plaintiffs’ motion for sanctions and ruled that the Maricopa County Sheriff’s Office (“MCSO”) failed to issue a timely litigation hold resulting in the destruction of relevant documents, including e-mails.

In discovery, plaintiffs learned the MCSO shredded relevant documents (i.e., stat sheets) and deleted e-mails.  In addition, not a single deponent was aware of their obligation to preserve evidence.

In the investor related action, Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, No. CIV. 05-9016, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 11, 2010) the defendants, who were connected to a hedge fund that lost money, sought sanctions against the plaintiffs for failing to preserve and produce documents, including ESI, and for submitting false declarations regarding their collection and production efforts. The Judge in this case was the Honorable Shira A. Scheindlin.

Corporate records retention policies for many companies are afterthoughts with little understanding of how the company truly uses its documents/records/ESI. In my experience, many companies leave the decision of whether to keep records and for how long to their employees. This strategy is dangerous and costly when litigation is potentially possible. Allowing your employees total control over records and ESI drives the cost of eDiscovery up because you greatly multiple the number of possible storage ares you must check for responsive records. It also increases the risk of spoliation when a litigation hold is required.