Preservation & e-Discovery

Homemade Thanksgiving Turkey on a Plate with Stuffing and Potatoes

As we anticipate the calorie-bomb of Thanksgiving dinner, let’s face it – litigation preservation is overweight, obese, and corpulent, torpidly dazed in a fat/sugar coma of way too much data. But effective Dec. 1, amended Rule 26 of the Federal Rules of Civil Procedure strikes back, limiting the scope of discovery to what is “proportional.” Will the amended rule tip the scales toward leaner litigation preservation, or is this simply another FRCP fad diet, doomed to fail? Continue Reading FRCP amended Rule 26 puts litigation on data diet – will it stick?

dog-homeworkiStock_000025329425_LargeWhen a judge hears that documents no longer exist due to a company’s retention schedule, it feels like we’re transported back to grade school, with a sheepish pupil making lame excuses about “disappearing” homework. Courts can seem skeptical, even disdainful, about retention schedules. As the U.S. Supreme Court characterized them in Arthur Andersen LLP v. United States, “’Document retention policies,’ which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business.” The tone is noblesse oblige, as if businesses follow an odd, quaint practice of having retention schedules, which should be grudgingly acknowledged before moving on to the court’s more important consideration of the preservation duty and discovery sanctions.

Ironically, the courts have retention schedules too. Yep, this notion of destroying records pursuant to a retention schedule is not unique to “business” – the trial judge at a spoliation hearing is governed by the court’s own records retention schedule, which classifies records by content type and prescribes records disposition, including destruction.  And the court also has a records management program, with one of its purposes being the appropriate disposition of records when they have served their purposes. Continue Reading But Judge, the dog ate my homework!

coffeeAdmit it – it feels strange, in an e-discovery world, to include “tangible things” in a legal hold notice. Litigation has always been document-intensive, and preserving ESI has been the crux of compliant legal hold practice ever since Judge Scheindlin took us to school in Zubulake. But as Starbucks recently learned the hard way, we forget “things” at our peril.

Starbucks not only sells lots of coffee – it provides the ambiance to enjoy it, such as by hanging out on a Starbucks deck in a patio chair, sipping an Americano while perusing the blogosphere. With thousands of such chairs and ensconced customers, something was bound to go awry. Continue Reading Documents, data, and THINGS… oh my!

glass-handiStock_000014073059_LargeI write this post on the three-year anniversary (Cheers!) of Judge Andrew Peck’s Da Silva Moore v. Publicis Groupe et al, S.D. New York, 11-1279, 2-24-2012 opinion, widely cited as the first case ruling to endorse the use of predictive coding or “technology-assisted review” (TAR) as a discovery tool.

TAR is the process of training a computer system to make decisions about the responsiveness of a document that would otherwise be reviewed and coded by a manual reviewer. With TAR, human effort is not eliminated, but rather used throughout the review process to train the system on what is responsive and what is not. The documents used to train the system are called the “training set” or “seed set.”   Once the system is trained, the computer reviews and codes the documents.

Since Da Silva Moore, the use of TAR in cases has gained some traction with litigants and courts. Commentary on the cost-savings and increased accuracy of TAR versus human review is relatively old news, and it seems well-established in case law that, as a general matter, TAR is an appropriate method for reviewing electronic data. But the defensibility of the particular TAR process used in a specific case is not yet predictable (pun intended). For example: Continue Reading Show me yours and I’ll show you mine — The importance of TAR transparency