e-Discovery: Preservation

Technology, Communication, People and Love for Technologists

Many people pontificate on keywords and search technologies and the need to grasp the fundamentals of how they operate. Others discuss cost savings or the destructive effect eDiscovery is having on corporate America. All of these present valid and key concepts to be discussed, but underlying all of them exists a larger issue: Communication. Most problems that arise from the electronic discovery abyss derive from poor communication.

To ensure that preservation is executed within an organization, it is imperative that key legal and litigation support stakeholders communicate with internal technology teams. This is especially true when it comes to the initial deployment of preservation-driven technology. Once installed, technology teams need to both train and communicate with the litigation support individuals so they know how to execute a preservation hold.

In the preservation arena, an effective solution will empower lawyers to be self-sufficient–without having to rely on technologists each and every time they seek to execute a court order preservation hold. Due to recession, most companies simply do not have sufficient assets to build their own in-house solution. However, the companies that do successfully empower the lawyers can realize substantial cost savings. The potential savings of empowering lawyers, by providing the correct technology tools for them to execute legal hold, saves companies people-hours, service fees as well as eliminating error.

The elimination of human communication errors may represent the largest savings. A slew of case law suggests that the execution of preservation is critical. For example:

Anadarko Petroleum Corp. v. Davis, 2006 U.S. Dist. LEXIS 93594 (S.D. Tex. Dec. 28, 2006); http://www.ca10.uscourts.gov/conference/downloads/ediscovery7.pdf

Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 247 F.R.D. 567 (D.Minn. 2007); http://www.ca10.uscourts.gov/conference/downloads/ediscovery7.pdf

In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (D. Del. June 4, 2008) http://www.ca10.uscourts.gov/conference/downloads/ediscovery7.pdf

Johnson v. Big Lots Stores, Inc., 2008 WL 2191357 (E.D. La. May 7, 2008) http://www.ca10.uscourts.gov/conference/downloads/ediscovery7.pdf

While these cases vary, in terms of outcome, regarding whether or not litigants execute preservation orders to the extent set-forth by the courts. The collective outcomes demonstrate the importance of being able to execute a defensible preservation order.

While the manual and laborious process of preservation sounds like a great way for one to spend weekends. It still leaves a company open to sizable human risk error. It might make sense for companies to consider empowering the lawyers to execute preservation holds. In other words, let the lawyers be lawyers and let the technologists be technologists.

In my experience, most preservation issues can be avoided if enterprise systems are configured so that lawyers can seamlessly implement a preservation hold and not have to use the technology 911 pager to effectuate a preservation order.

eDiscovery