Ok, I know there is a push back from the legal industry in reference to the problem of the cost of discovery. Yes, companies create, use, receive and delete huge amounts of electronic information on a daily basis and it is unreasonable to expect an organization to have enough of a handle on this moving target to be able to place an effective legal hold – quickly, and provide all responsive information in response to an eDiscovery request. But come on… organizations live and die by their information, especially electronic information and if an organization doesn’t have enough of a handle on their data to be able to place a legal hold on select data, then I’m sorry they have other problems.
It all comes down to effective information management. Why is it unreasonable for a Judge to expect a company knows what data it has at any point in time and can find it when it needs to?
I understand the proportionality doctrine argument, and it makes sense. If proportionality did not exist, a plaintiff’s counsel could win every case just based on how they construct their discovery request.
Many businesses in the United States have long given employees total control of the company records, with a few exceptions, with little or no central control or even knowledge the information exists and how it pertains to the business. This does not seem the best business decision for the long run.
Maybe eDiscovery can serve as the impetus to nudge companies to start taking information management seriously. If Judges start imposing even larger penalties and fines for what amounts to eDiscovery failings because of ineffective or no information management policies in an organization, then we may see a corporate change of attitude.
In a recent LTN Law Technology News article, e-discovery analyst Barry Murphy of Murphy Insights noted that very few sanctions for e-discovery have had any real teeth, and the few that have involved large dollar amounts have been overturned. In some cases, e-discovery snafus have led to negative inferences that almost certainly impacted the outcome, but he says even those rulings seem to have had little impact. “The sanctions we’re seeing are too small to register with many people, and while negative inferences may lead to a bad outcome, the impact is not always obvious,” says Murphy. “Once we see a sanction for many millions of dollars because of a failure to preserve electronic evidence, the point will be clearer.”
Let me offer some common sense suggestions around information management and eDiscovery:
- Have regularly updated and tested records retention policies
- Get rid of data your business no longer needs
- Really know what electronically stored information (ESI) you have and don’t have
- Be ready to find it quickly
- If you are a big enough organization, have tools on hand to help in the searches
- Have a tested litigation hold process. Be able to stop records deletions based on content, employee, date etc. quickly
- Have a tested eDiscovery process
Too many organizations are willing to risk the consequences; “It’s never happened to me before”. If you manage your ESI effectively, then discovery response should not be a problem