Tag Archives: defensible

“Act Reasonably” — Two Court-Issued Checklists Outlining Defensible, Targeted ESI Collection

Recently two separate and prominent courts — the federal court for the Northern District of California and the Delaware Court of Chancery (which is the primary court of equity for Delaware registered corporations) issued eDiscovery preservation guidelines. This is not unprecedented as other courts have issued similar written guidance in the form of general guidance or even more enforceable local rules of court specifically addressing eDiscovery protocols. What I found particularly interesting, however, is both courts provided fairly specific guidance on the scope of collection and preservation. In the case of the California court, which notes that its “guidelines are designed to establish best practices for evidence preservation in the digital age,” the Court offers a checklist for Rule 26(f) “meet and confer” conferences with good detail on suggested ESI preservation protocols. The Delaware Court of Chancery also issued a detailed checklist or “sample collection outline.” ESI preservation checklists are useful practice guides, and these are sanctioned by two separate influential courts.

This is important as the largest expense directly associated with eDiscovery is the cost of overly inclusive preservation and collection, which leads to increased volume charges and attorney review costs. To the surprise of many, properly targeted preservation initiatives are permitted by the courts and can be enabled by adroit software that is able to quickly and effectively access and search these data sources throughout the enterprise.

The value of targeted preservation is recognized in the Committee Notes to the FRCP amendments, which urge the parties to reach agreement on the preservation of data and the keywords used to identify responsive materials. (Citing the Manual for Complex Litigation (MCL) (4th) §40.25 (2)).  And In re Genetically Modified Rice Litigation, 2007 WL 1655757 (June 5, 2007 E.D.Mo.), the court noted that “[p]reservation efforts can become unduly burdensome and unreasonably costly unless those efforts are targeted to those documents reasonably likely to be relevant or lead to the discovery of relevant evidence.”

The checklist from the California Northern District and the guidelines issued by the Delaware court are consistent with these principles as they call for the specification of date ranges, custodian names and search terms for any ESI to be preserved. The Northern District checklist, for instance, provides for the identification of specific custodians and job titles of custodians whose ESI is to  be preserved, and also specific search phrases search terms “that will be used to identify discoverable ESI and filter out ESI that is not subject to discovery.”

However, many lawyers shy away from a targeted collection strategy over misplaced defensibility concerns, optioning instead for full disk imaging and other broad collection efforts that exponentially escalate litigation costs. The fear by some is that there always may be that one document that could be missed. However, in my experience of following eDiscovery case law over the past decade, the situations where litigants face exposure on the preservation front typically involve an absence of a defensible process. When courts sanction parties, it is usually because there is not a reasonable legal hold procedure in place, where the process is ad hoc and made up on the fly and/or not effectively executed. I am personally unaware of a published decision involving a fact pattern where a company featured a reasonable collection and preservation process involving targeted collection executed pursuant to standard operating procedures, yet was sanctioned because one or two relevant documents slipped through the cracks.

This is because the duty to preserve requires reasonable efforts, not infallible means, to collect potentially relevant information. As succinctly stated by the Delaware court: “Parties are not required to preserve every shred of information. Act reasonably.”

Another barrier standing in the way of defensible and targeted collection is that searching and performing early case assessment at the point of collection is not feasible in the decentralized global enterprise with traditional eDiscovery and information management tools. What is needed to address these challenges for the de-centralized enterprise is a field-deployable search and eDiscovery solution that operates in distributed and virtualized environments on-demand within these distributed global locations where the data resides. In order to meet such a challenge, the eDiscovery and search solution must immediately and rapidly install, execute and efficiently operate locally, including in a virtual environment, where the site data is located, without rigid hardware requirements or on-site physical access.

This ground breaking capability is what X1 Rapid Discovery provides. Its ability to uniquely deploy and operate in the IaaS cloud also means that the solution can install anywhere within the wide-area network, remotely and on-demand. Importantly, the search index is created virtually in the location proximity of the data subject to collection. This enables even globally decentralized enterprises to perform targeted search and collection efforts in an efficient, defensible and highly cost effective manner. Or, in the words of the Delaware court — the ability to act reasonably.

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Filed under Case Law, Cloud Data, Enterprise eDiscovery, IaaS

No Legal Duty or Business Reason to Boil the Ocean for eDiscovery Preservation

As an addendum to my previous blog post on the unique eDiscovery and search burdens associated with the de-centralized enterprise, one tactic I have seen attempted by some CIOs to address this daunting challenge is to try to constantly migrate disparate data from around the globe into a central location. Just this past week, I spoke to a CIO that was about to embark on a Quixotic endeavor to centralize hundreds of terabytes of data so that it could be available for search and eDiscovery collection when needed. The CIO strongly believed he had no other choice as traditional information management and electronic discovery tools are not architected and not suited to address large and disparate volumes of data located in hundreds of offices and work sites across the globe that all store information locally. But boiling the ocean through data migration and centralization is extremely expensive, disruptive and frankly unworkable.

Industry analyst Barry Murphy succinctly makes this point:

Centralization runs counter to the realities of the working world where information must be distributed globally across a variety of devices and applications.  The amount of information we create is overwhelming and the velocity with which that information moves increases daily.  To think that an organization can find one system in which to manage all its information is preposterous. At the same time, the FRCPs essentially put the burden on organizations to be accountable for all information, able to conduct eDiscovery on a moment’s notice.  As we’ve seen, the challenge is daunting.

As I wrote earlier this month, properly targeted preservation initiatives are permitted by the courts and can be enabled by effective software that is able to quickly and effectively access and search these data sources throughout the enterprise.  The value of targeted preservation was recognized in the Committee Notes to the FRCP amendments, which urge the parties to reach agreement on the preservation of data and the keywords used to identify responsive materials. (Citing the Manual for Complex Litigation (MCL) (4th) §40.25 (2)).  And In re Genetically Modified Rice Litigation, 2007 WL 1655757 (June 5, 2007 E.D.Mo.), the court noted that “[p]reservation efforts can become unduly burdensome and unreasonably costly unless those efforts are targeted to those documents reasonably likely to be relevant or lead to the discovery of relevant evidence.”

What is needed to address both eDiscovery and enterprise search challenges for the de-centralized enterprise is a field-deployable search and eDiscovery solution that operates in distributed and virtualized environments on-demand within these distributed global locations where the data resides. This ground breaking capability is what X1 Rapid Discovery provides. Its ability to uniquely deploy and operate in the IaaS cloud also means that the solution can install anywhere within the wide-area network, remotely and on-demand. This enables globally de-centralized enterprises to finally address their overseas data in an efficient, expedient, defensible and highly cost-effective manner.

But I am interested in hearing if anyone has had success with the centralization model. In my 12 years in this business and the 8 years before that as a corporate attorney, I have yet to see an effective or even workable situation where a global enterprise has successfully centralized all of their electronically stored information into a single system consisting of hundreds of terabytes. If you can prove me wrong and point to such a verifiable scenario, I’ll buy you a $100 Starbucks gift certificate or a round of drinks for you and your friends at ILTA next week.  If you want to take the challenge of just meet up at ILTA next week in Washington, feel free to email me.

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Filed under Cloud Data, eDiscovery & Compliance, Enterprise eDiscovery, IaaS, Preservation & Collection