E-Discovery: Avoiding The High Costs Of Over-Preservation

Tuesday, October 4, 2011 - 01:00

Fear of spoliation sanctions results in the harboring of countless electronic files. Lawyers and clients will often opt for the cautious approach of preserving everything, or almost everything, to avoid the risk of discovery sanctions or a spoliation determination. The consequence, however, is the extraordinary waste of time, internally and/or externally, to sort and review mountains of preserved documents and electronically stored information ("ESI").

Although litigants should err on the side of preservation, it makes sense to do so economically, if possible. After all, before e-discovery, how many people preserved their junk mail and old newspapers to avoid the risk of sanctions?

Not Everything Has To Be Preserved

Although accessible and actively used backup tapes are subject to litigation holds, the general rule is that inaccessible backup tapes (those used for disaster recovery) are not. Zubulake v. UBS Warburg , 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (" Zubulake IV "). The exception, however, is if the backup tapes (a) concern key players and the ESI at issue cannot be obtained from readily accessible sources, or (b) are the "sole source of relevant information." Id. There is also no need to preserve multiple identical copies of ESI. Orbit One Commc'ns, Inc. v. Numerex Corp. , 271 F.R.D. 429, 436-37 & n.11 (S.D.N.Y. 2010) (quoting Zubulake IV ). Just make sure the copies are identical.

Engage In Early Case Assessment

To avoid overly broad litigation holds once litigation is anticipated, we recommend to our clients that we, or they, interview employees to create a list of key custodians, specific sources of potentially relevant information and appropriate search terms for effective data sampling.

The parties' counsel should also meet to discuss custodians, date ranges, search terms and the handling of multiple copies. Early in the litigation, we prefer to send a letter to opposing counsel notifying them of what will be preserved, and let them know that unless they hear otherwise, everything else will be subject to routine destruction. If ever challenged, an early case assessment helps establish good faith efforts by the business to preserve relevant information.

Evaluate Vendor Expenses

Counsel should be able to evaluate all aspects of e-discovery vendors, including their experience and expenses. It all boils down to a few simple questions: Do you need what you're paying for? Did you get what you're paying for? If so, are you getting it consistently in every case across your organization? Finally, do you have the right people asking and answering these questions? Lawyers, even the tech-savvy ones, need the support of IT personnel or consultants (independent of the vendor) who understand litigation and the interests of the client.

Employ Consistently Applied Document Management Policies

Without regular document management, a litigation hold may capture thousands of documents that otherwise would have been purged in the normal course of business before litigation had been anticipated. A policy should be routine and well documented, and it should be followed consistently and universally across the business. The more it can be automated, the better. Consistent business practices should help rebut any challenges as to why documents were deleted.

Utilize Central Repositories And Online Review Tools

A large business that faces any volume of similar suits may maintain, in-house or through counsel or a vendor, a central repository of all documents subject to litigation holds. Through the business's secure review tool, attorneys can review and code documents relevant to their case. The business can release coding to other attorneys. Sharing coding alleviates the need for the same document to be processed and reviewed in a first-tier review by each attorney in each matter, and it results in consistency regarding document review. Since the business controls the review tool, it can also measure productivity in review. But there are upfront costs to establishing the repository, including those related to labor, software, legal consultation and hosting requirements.

Reduce Data Sets During Collection And Release Litigation Holds

Over-collection is often worse than over-preservation. When it is time to collect and review data, parties should work together again to additionally narrow the scope of relevance. If opposing counsel insists on broad discovery, seek the court's involvement. Predictive coding can be utilized along with other software to streamline review processes. Finally, when a case is completed (via a finalized settlement agreement or judgment, and after all opportunities to appeal), litigation holds should be released after notification to the other party.

We are seeing the pendulum swing back to a degree. E-discovery should not be the tail wagging the litigation dog. To keep it from becoming so, experience, early case assessment, vendor management and proper staffing can help you avoid preserving material that has no bearing on any litigation.

John G. Schmidt Jr. is a Partner at Phillips Lytle LLP and the co-leader of the firm's Business & Commercial Litigation Practice Team. Jennifer A. Beckage is an Associate on the Business & Commercial Litigation Practice Team at Phillips Lytle LLP. She is a former technology business owner and frequently speaks and writes on e-discovery issues.

Please email the authors at jschmidt@phillipslytle.com or jbeckage@phillipslytle.com with questions about this article.