Litigation Holds
November 25th, 2008 Filed Under E-discovery, IT, Litigation holds
Knowing when to issue a litigation hold is key to a successful litigation strategy. The cost of a mistake can be significant. This is an interesting article about the cost of a misstep on this front.
In the court case Consolidated Aluminum v. Alco, the defendant suffered monetary sanctions for failing to properly apply litigation holds. In spite of the fact that Alco had a litigation hold policy in place, someone was asleep at the wheel. There were several serious issues: Alco issued the holds after litigation had begun, did not make the holds broad enough, and did not enforce holds when key employees deleted relevant data.
One of the federal rules of civil procedure’s strictures requires that companies demonstrate consistent litigation hold practices. This does not mean that litigation holds must be issued willy-nilly. No one (with the possible exception of opposing counsel) believes that a company must lock up all its active data in case of potential relevance, no matter how slight. However, litigation holds do come into serious play when looming litigation is “reasonably anticipated” and when data has high potential relevance, no matter where it may be located.
This area is another example where human oversight and e-discovery technology can and should work together. Attorneys and IT should work together to decide what electronically stored information (ESI) should be retained for upcoming discovery actions, which individuals have custody of the relevant ESI, and where the files are located — fileshares, email servers, archives, laptops. Once these decisions are made, then the firm can use e-discovery tools to search for and hold the relevant data.
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Trend: IT transferring the Burden of E-Discovery back to Legal Departments
May 5th, 2008 Filed Under E-discovery, IT
In recent years since E-discovery has become a major concern of most corporate legal departments, a significant portion of the burden of producing relevant documents have rested on the IT departments of such corporations. IT professionals are required to retroactively search through back up tapes, locate relevant information, and organize it in a user-friendly environment so that such information can be reviewed and produced by attorneys to the opposing side. Now IT departments are being more proactive and are anticipating future litigation by culling such data beforehand. This eliminates disruptions to the corporation and decreases litigation costs at the same time. By making such data more easily accessible, the burden then becomes reviewing and classifying such data instead of on the retrieval of the data. This is then a legal question of relevance and non-relevance as oppose to a question involving information technology. It pays to plan ahead.
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