A blog dedicated to cases, insights, developments and best practices relating to the development and implementation of legal holds relating to audit, investigation and litigation in the United States; and trigger events that give rise to the duty to preserve evidence in the United States.
Many organizations use some form of server space to store ESI being preserved pursuant to a litigation hold. Methods vary from the low end of defensible (adhoc space using drag and drop preservation) to the high end of defensible (specialized storage locations using programs designed specificaly for secure preservation). Most organizations fall somewhere in the middle.
Mary Mack of Fios, Inc. published a good overview of the use of preservation repositories in e-Discovery & Preservation Obligations - Getting Ahead of the Game!, which we found posted at Lexbetm. The article contains some very practical advice on the nuts and bolts of getting from preserving in place, through collection and ultimate preservation in a repository. Topic headings include, Preservation Obligations & Triggers, IT's Role in the Preservation Process, The Preservation Framework and Completing the Process. In addition to some useful step by step instructions, the article contains this nifty graphic about the process:
During the holidays our thoughts often turn to loved ones. Law.com recently published an interesting perspective on document preservation. The article takes time honored relationship tips and applies them to litigation holds. The parallels are uncanny and we absolutely can not resist posting a link. Here is the lead in:
"Romantic" would probably not be the first word -- or even the last -- that comes to mind when considering the case law and emerging best practices regarding document preservation. Yet, there is an unmistakable parallel between the preservation of documents and the preservation of a romantic union. The same common-sense principles guiding relationships that countless advice columnists have offered also apply to successful document preservation. As many companies still do not have litigation hold processes in place to deal with document preservation, mastering the following basic principles of document preservation is more important than ever, especially considering the steady flow of decisions in 2009 addressing the topic.
Maggette v. BL Development Corp., 2:07-cv-182, 2009 U.S. Dist. LEXIS 116789 (ND Miss. Nov. 24, 2009) is a straightforward caution to corporations to make sure that litigation hold procedures are transparent and communicated to the court as early as possible. Here, a U.S. Magistrate Judge for the Northern District of Mississippi, openly suspicious of defendants' lack of evidence, orders defendant to pay for the services of a third-party e-discovery expert to answer some very basic questions posed by the court. Procedurally, the court was entertaining plaintiffs' motions to strike and for sanctions. The court declined to order sanctions, but nevertheless takes defendant to task for failing to come forward with what exactly was done to preserve ESI and search ESI in response to plaintiffs' discovery demands. The lack of specificity before the court on the exact efforts used to search ESI lead the court to write:
In this case, the defendants have produced information and affidavits and have stated at the hearing on these motions that they have searched for documents and information responsive to the plaintiffs' discovery requests and produced all information responsive to those requests. Nevertheless, despite the court's direct order that "all defendants . . . search any available databases for responsive information and produce it to the plaintiffs. . . , " the defendants are un-able to describe the databases searched, the search terms, methods or parameters used to search the databases or provide any expert information confirming that there are no documents, electronically stored information or other information responsive to plaintiffs' discovery requests. Docket 177, p. 13. Further, the defendants have not provided any concrete reason or rationale for the numerous discrepancies within their discovery responses and the deposition testimony of their own employees. Nor has defendant articulated a satisfactory response to the court's doubts expressed at the hearing that corporations as large and sophisticated as the defendants, which operate numerous gaming facilities across the country with various operations centers, do not have either paper files, electronic files or information or -- even in light of Hurricane Katrina -- backup measures and files for at least some of the information requested by plaintiffs.
This begins defendants slide down a slippery slope.
