An article in the just released December 2009 Issue of InsideCounsel magazine titled "Burned by BlackBerry's" discusses Mechanical Services, Inc. v. Brody, a case we reported on back in September. In short, the suspicious lack of data on several BlackBerries owned or used by some of the litigants led to sanctions, including an adverse inference jury instruction. To read our original post, click the case name or here.
What InsideCounsel contributes is a quote from e-discovery commentator Ralph Losey. Mr. Losey
points out that keeping track of data and managing e-discovery holds was a bit easier in the “old days,” three or four years ago, before the advent of PDA’s, thumb drives, smartphones, Internet-based e-mail and instant messaging accounts and other cloud computing data. Such technologies now permit the storage of data in many other locations beyond an institution’s servers and data map.
Just 57 percent of U.S. companies report having a mechanism in place to suspend their document retention/destruction policies in response to litigation or an investigation, commonly known as a litigation hold procedure, according to a survey released in October by Kroll Ontrack, a legal technology consultancy.
Also quote worthy is a proposition that we agree with:
"Sanctions occur because, all too often, risks are taken and legal holds are not declared when controversies and potential litigation first occur," says B. Jay Yelton III, a principal at Miller Canfield.
To read the whole article click on the title above. To read more about Kroll Ontrack's survey results, click here.