Dead End: Hold On! Theres a hole in your case...

Over at Practical e-Discovery, they point to the recent ruling in Siani v. State Univ. of New York, 2010 as being critical in the e-Discovery space. To understand why, let us start at crux of the problem: when do organizations have a duty to preserve data?

Is it forever? Or when there is reasonable suspicion of an upcoming case? Does the pre-suit duty to preserve begin by just a letter by a putative plaintiff which even contemplates a suit? Or perhaps when the suit hits? Without a definitive landmark, it is impossible for organizations and legal teams to plan for litigation. And in a world which runs on dependable schedules and efficiency, that means costly and protracted reaction. 

Siani relies upon the the work-product doctrine, which encompasses documents that are prepared “in anticipation of litigation.” As Practical e-Discovery mentions, Siani v. State Univ. of New York reached the reasonable conclusion, 'that if litigation was reasonably foreseeable for one purpose, “it was reasonably foreseeable for all purposes."' Which means that the duty to preserve begins with the creation of any work-product.

The work-product doctrine slices both ways, since by invoking it for protection means that to the organization, litigation was reasonably anticipated and the duty to preserve had been triggered at that point. Again, this translates into the fact that the beginning of the work-product immunity should be the beginning of related electronically stored information (ESI) on legal hold.

In effect, companies must enact legal hold the moment in which documents are prepared in anticipation of litigation. There is no way to do so without a proactive archiving and e-Discovery tool already in place, because otherwise there would be reliance on the custodian (potentially those involved) to retain their own (potentially incriminating) documents. And as we have seen in Adams v. Dell, there continues to be a large question in custodian-trusted legal hold.

As more and more of these cases evolve, organizations must focus on proactive e-Discovery.

Going Up: Balloons and Litigation

Up, like Pixar's profits after its record-smashing Toy Story 3, is apparently the only direction which litigation is heading. According to Fulbright & Jaworski's 6th Annual Litigation Trend Study, over 52% of larger companies expect litigation to increase, a result of the economic climate. Of large companies with over $1 billion dollars of revenue, a quarter believe that they will begin more internal investigations. The source of these investigations and increasing litigation stems directly from increased regulations, IP/Patent disputes, and bankruptcy.

This continuing trend in litigation means that companies should enact compliance solutions and litigation preparation to mitigate risk and reduce litigation costs. This is especially underlined by Adams v. Dell (now Adams v. Winbond):

The pivotal issue is when the duty to preserve documents for litigation arises. The parties in Adams agreed with the nearly-universal legal standard -- a person has a duty to preserve documents when that person actually foresees or reasonably should foresee that the documents are relevant to likely or actual litigation. 

Basically, the court held that, given the well-known litigation in the late 1990s involving the floppy disk controllers, and given one defendant’s involvement with the controllers, that party had a duty as early as 1999 to keep documents relevant to the controllers even though the particular defendant was not a party to that litigation. 


What this boils down to is that a legal team has the duty to keep documents once they see that it might be relevant in any litigation within their industry. Pause for a second and think how difficult that would be without the ability to do enterprise-wide search. Think about how ridiculous it would be without being able to place legal hold on those documents once they are found. I've seen a few solutions that can do that...but can't perform the enterprise-wide search in reasonable times. With all the litigation going around, you're likely to keep a lot of the company on legal hold if you aren't able to search through the company.


The trick is to be able to find documents throughout the enterprise (maybe even classifying before they are stored) and to place legal hold on a granular level, on only the document itself. That way, you don't hold everyone's mailbox up, you are able to get storage savings and mailbox management, and you are still compliant with your duty to preserve. 


Think of it like holding onto balloons. If you keep everyone's emails in every relevant inbox, eventually your storage costs balloon and you find your enterprise costs floating away. Choosing which balloons to hold onto (my favorite are the blue ones) is much more manageable and fun. All it would take is a simple search, click, and the legal hold is up. From what I've seen, only ZL can provide those search capabilities.