Posts Tagged ‘litigation’

The Cost of Collection:

Medium to large sized organizations are being driven to lower their overall litigation costs by bringing more of the eDiscovery processes in-house. To do this, organizations need to understand and proactively plan for the eDiscovery process. The most cost effective way to quickly lower eDiscovery costs are to prepare for the collection phase by putting in place an ESI archive to capture and manage those ESI silos that are most requested…Email, File System and SharePoint ESI.

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.

United States District Court Judge Shira A. Scheindlin issued five groundbreaking opinions in 2003 and 2004,  on the now very much known case of Zubulake v UBS Warburg.  This case is generally considered the first definitive case in the United States on a wide range of electronic discovery issues. These issues include:

• Data sampling
• The scope of the duty to preserve electronic evidence during the course of the litigation

Research from Enterprise Strategy Group finds the space will continue to grow as more companies bring litigation support operations in-house.

In a recent article published on the destinationCRM.com website by Christopher Musico, it was pointed out that eDiscovery requests in 2010 are expected to rise from the already high rates of 2009.

A corporate strategy of proactively archiving and managing employee email with well documented email use policies and an audit program can help insure that employee wrong-doing is stopped before it becomes an outside legal action.

1. Create a easy to understand employee use policy which clearly calls out what can be done in the corporate email system and what can’t. An example would be to not allow personal communications using the corporate email system.

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.

The arguments for the under preserving of ESI are well known and varied. The most prevalent argument I hear for under preserving is “the more data, email, files etc. we keep, the higher the risk that it will be used against me in litigation“.

From eDiscoverylaw.com

Court Finds Failure to Implement Litigation Hold Gross Negligence but Declines to Order Adverse Inference where Plaintiffs Failed to Establish Relevance of the Information Destroyed

ACORN v. County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009)

An interesting news story appeared in the Denver Post on December 26, 2008. It was a story about the expected rise in wrongful termination lawsuits as the economy worsens.

From the Denver Post Article by Carol J. Williams:”But labor and employment lawyers warn that a tidal wave of wrongful-termination lawsuits is expected in the coming months as the jobless burn through their savings, run up debt and find few work prospects in the worst economic downturn in decades.

Many companies I speak with mention the fact that they have some small percentage of their email traffic in an encrypted format. This can be either because of company or regulatory requirement or even more, because employees don’t want the content read by the company.

Encrypted email can represent a major risk in a corporate civil litigation if the company doesn’t have the encryption key.