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Defensible Deletion: The Cornerstone of Intelligent Information Governance
The struggle to stay above the rising tide of information is a constant battle for organizations. Not only are the costs and logistics associated with data storage more troubling than ever, but so are the potential legal consequences. Indeed, the news headlines are constantly filled with horror stories of jury verdicts, court judgments and unreasonable settlements involving organizations that failed to effectively address their data stockpiles. While there are no quick or easy solutions to these problems, an ever increasing method for effectively dealing with these issues is through an organizational strategy referred to as defensible deletion. A defensible deletion strategy could refer to many items. But at its core, defensible deletion is a comprehensive approach that companies implement to reduce the storage costs and legal risks associated with the retention of electronically stored information (ESI). Organizations that have done so have been successful in avoiding court sanctions while at the same time eliminating ESI that has little or no business value. The first step to implementing a defensible deletion strategy is for organizations to ensure that they have a top-down plan for addressing data retention. This typically requires that their information governance principals – legal and IT – are cooperating with each other. These departments must also work jointly with records managers and business units to decide what data must be kept and for what length of time. All such stakeholders in information retention must be engaged and collaborate if the organization is to create a workable defensible deletion strategy. Cooperation between legal and IT naturally leads the organization to establish records retention policies, which carry out the key players’ decisions on data preservation. Such policies should address the particular needs of an organization while balancing them against litigation requirements. Not only will that enable a company to reduce its costs by decreasing data proliferation, it will minimize a company’s litigation risks by allowing it to limit the amount of potentially relevant information available for current and follow-on litigation. In like manner, legal should work with IT to develop a process for how the organization will address document preservation during litigation. This will likely involve the designation of officials who are responsible for issuing a timely and comprehensive litigation hold to custodians and data sources. This will ultimately help an organization avoid the mistakes that often plague document management during litigation. The Role of Technology in Defensible Deletion In the digital age, an essential aspect of a defensible deletion strategy is technology. Indeed, without innovations such as archiving software and automated legal hold acknowledgements, it will be difficult for an organization to achieve its defensible deletion objectives. On the information management side of defensible deletion, archiving software can help enforce organization retention policies and thereby reduce data volume and related storage costs. This can be accomplished with classification tools, which intelligently analyze and tag data content as it is ingested into the archive. By so doing, organizations may retain information that is significant or that otherwise must be kept for business, legal or regulatory purposes – and nothing else. An archiving solution can also reduce costs through efficient data storage. By expiring data in accordance with organization retention policies and by using single instance storage to eliminate ESI duplicates, archiving software frees up space on company servers for the retention of other materials and ultimately leads to decreased storage costs. Moreover, it also lessens litigation risks as it removes data available for future litigation. On the eDiscovery side of defensible deletion, an eDiscovery platform with the latest in legal hold technology is often essential for enabling a workable litigation hold process. Effective platforms enable automated legal hold acknowledgements on various custodians across multiple cases. This allows organizations to confidently place data on hold through a single user action and eliminates concerns that ESI may slip through the proverbial cracks of manual hold practices. Organizations are experiencing every day the costly mistakes of delaying implementation of a defensible deletion program. This trend can be reversed through a common sense defensible deletion strategy which, when powered by effective, enabling technologies, can help organizations decrease the costs and risks associated with the information explosion.Breaking News: Recusal Motion in Da Silva Moore Case Denied
In what might be characterized as the most anticipated ruling in the eDiscovery world over the past several months, the district court in Da Silva Moore v. Publicis Groupe today denied the plaintiffs’ motion to recuse the Honorable Andrew Peck as the assigned magistrate to that action. In rejecting the plaintiffs’ recusal request, United States District Court Judge Andrew Carter held that “Judge Peck’s decision accepting computer-assisted review, reached upon consideration of the applicable law, was not influenced by bias, nor did it create any appearance of bias.” Judge Carter’s decision is particularly significant as it leaves undisturbed Judge Peck’s orders regarding the use of predictive coding and his declaration that computer-assisted review in eDiscovery is “acceptable in appropriate cases.” Moreover, Judge Carter gave another judicial imprimatur to predictive coding with his determination that it “does not inherently favor one party over the other in this case.” With today’s ruling, Judge Carter has perhaps finally brought to a close the contentious sideshow that nearly overshadowed the first known case involving the use of predictive coding in eDiscovery. With its potential to reduce the costs and delays associated with the review of ESI, predictive coding holds incredible promise for the future of eDiscovery.Spotlighting the Top Electronic Discovery Cases from 2012
With the New Year quickly approaching, it is worth reflecting on some of the key eDiscovery developments that have occurred during 2012. While legislative, regulatory and rulemaking bodies have undoubtedly impacted eDiscovery, the judiciary has once again played the most dramatic role. There are several lessons from the top 2012 court cases that, if followed, will likely help organizations reduce the costs and risks associated with eDiscovery. These cases also spotlight the expectations that courts will likely have for organizations in 2013 and beyond. Implementing a Defensible Deletion Strategy Case: Brigham Young University v. Pfizer, 282 F.R.D. 566 (D. Utah 2012) In Brigham Young, the plaintiff university had pressed for sanctions as a result of Pfizer’s destruction of key documents pursuant to its information retention policies. The court rejected that argument because such a position failed to appreciate the basic workings of a valid corporate retention schedule. As the court reasoned, “[e]vidence may simply be discarded as a result of good faith business procedures.” When those procedures operate to inadvertently destroy evidence before the duty to preserve is triggered, the court held that sanctions should not issue: “The Federal Rules protect from sanctions those who lack control over the requested materials or who have discarded them as a result of good faith business procedures.” Summary: The Brigham Young case is significant since it emphasizes that organizations should implement a defensible deletion strategy to rid themselves of data stockpiles. Absent a preservation duty or other exceptional circumstances, organizations that pare back ESI pursuant to “good faith business procedures” (such as a neutral retention policy) will be protected from sanctions. **Another Must-Read Case: Danny Lynn Elec. v. Veolia Es Solid Waste (M.D. Ala. Mar. 9, 2012) Issuing a Timely and Comprehensive Litigation Hold Case: Apple, Inc. v. Samsung Electronics Co., Ltd, --- F. Supp. 2d. --- (N.D. Cal. 2012) Summary: The court first issued an adverse inference instruction against Samsung to address spoliation charges brought by Apple. In particular, the court faulted Samsung for failing to circulate a comprehensive litigation hold instruction when it first anticipated litigation. This eventually culminated in the loss of emails from several key Samsung custodians, inviting the court’s adverse inference sanction. Ironically, however, Apple was subsequently sanctioned for failing to issue a proper hold notice. Just like Samsung, Apple failed to distribute a hold until several months after litigation was reasonably foreseeable. The tardy hold instruction, coupled with evidence suggesting that Apple employees were “encouraged to keep the size of their email accounts below certain limits,” ultimately led the court to conclude that Apple destroyed documents after its preservation duty ripened. The Lesson for 2013: The Apple case underscores the importance of issuing a timely and comprehensive litigation hold notice. For organizations, this likely means identifying the key players and data sources that may have relevant information and then distributing an intelligible hold instruction. It may also require suspending aspects of information retention policies to preserve relevant ESI. By following these best practices, organizations can better avoid the sanctions bogeyman that haunts so many litigants in eDiscovery. **Another Must-Read Case: Chin v. Port Authority of New York, 685 F.3d 135 (2 nd Cir. 2012) Judicial Approval of Predictive Coding Case: Da Silva Moore v. Publicis Groupe, --- F.R.D. --- (S.D.N.Y. Feb. 24, 2012) Summary: The court entered an order that turned out to be the first of its kind: approving the use of predictive coding technology in the discovery phase of litigation. That order was entered pursuant to the parties’ stipulation, which provided that defendant MSL Group could use predictive coding in connection with its obligation to produce relevant documents. Pursuant to that order, the parties methodically (yet at times acrimoniously) worked over several months to fine tune the originally developed protocol to better ensure the production of relevant documents by defendant MSL. The Lesson for 2013: The court declared in its order that predictive coding “is an acceptable way to search for relevant ESI in appropriate cases.” Nevertheless, the court also made clear that this technology is not the exclusive method now for conducting document review. Instead, predictive coding should be viewed as one of many different types of tools that often can and should be used together. ** Another Must-Read Case: In Re: Actos (Pioglitazone) Prods. Liab. Litig. (W.D. La. July 10, 2012) Proportionality and Cooperation are Inextricably Intertwined Case: Pippins v. KPMG LLP, 279 F.R.D. 245 (S.D.N.Y. 2012) Summary: The court ordered the defendant accounting firm (KPMG) to preserve thousands of employee hard drives. The firm had argued that the high cost of preserving the drives was disproportionate to the value of the ESI stored on the drives. Instead of preserving all of the drives, the firm hoped to maintain a reduced sample, asserting that the ESI on the sample drives would satisfy the evidentiary demands of the plaintiffs’ class action claims. The court rejected the proportionality argument primarily because the firm refused to permit plaintiffs or the court to analyze the ESI found on the drives. Without any transparency into the contents of the drives, the court could not weigh the benefits of the discovery against the alleged burdens of preservation. The court was thus left to speculate about the nature of the ESI on the drives, reasoning that it went to the heart of plaintiffs’ class action claims. As the district court observed, the firm may very well have obtained the relief it requested had it engaged in “good faith negotiations” with the plaintiffs over the preservation of the drives. The Lesson for 2013: The Pippins decision reinforces a common refrain that parties seeking the protection of proportionality principles must engage in reasonable, cooperative discovery conduct. Staking out uncooperative positions in the name of zealous advocacy stands in sharp contrast to proportionality standards and the cost cutting mandate of Rule 1. Moreover, such a tactic may very well foreclose proportionality considerations, just as it did in Pippins. **Another Must-Read Case: Kleen Products LLC v. Packaging Corp. of America (N.D. Ill. Sept. 28, 2012) Conclusion There were any number of other significant cases from 2012 that could have made this list. We invite you to share your favorites in the comments section or contact us directly with your feedback.Would Rule Changes Alleviate eDiscovery Burdens?
You have heard this one before. Changes to the Federal Rules are in the works that could alleviate the eDiscovery burdens of organizations. Greeting this news with skepticism would probably be justified. After all, many feel that the last set of amendments failed to meet the hype of streamlining the discovery process to make litigation costs more reasonable. Others, while not declaring the revised Rules a failure, nonetheless believe that the amendments have been doomed by the lack of adherence among counsel and the courts. Regardless of the differing perspectives, there seems to be agreement on both sides that the Rules have spawned more collateral disputes than ever before about the preservation and collection of ESI. What is different this time is that the latest set of proposed amendments could offer a genuine opportunity for organizations to slash the costs of document preservation and collection. Chief among these changes would be a revised Rule 37(e). The current iteration of this rule is designed to protect companies from court sanctions when the programmed operation of their computer systems automatically destroys ESI. Nevertheless, the rule has largely proved ineffective as a national standard because it did not apply to pre-litigation information destruction activities. As a result, courts often bypassed the rule’s protections to punish companies who negligently, though not nefariously, destroyed documents before a lawsuit was filed. The current proposal to amend Rule 37(e) (see page 127) would substantially broaden the existing protection against sanctions. The proposal would shield an organization’s pre-litigation destruction of information from sanctions except where that destruction was “willful or in bad faith and caused substantial prejudice in the litigation” or “irreparably deprived a party of any meaningful opportunity to present a claim or defense.” In making a determination on this issue, courts would be forced to examine the enterprise’s information retention protocols through more than just the lens of litigation. Instead, they would have to consider the nature and motives behind a company’s decision-making process. Such factors include: The extent to which the party was on notice that litigation was likely The reasonableness and proportionality of the party’s efforts to preserve the information The nature and scope of any request received to preserve information Whether the party sought timely judicial guidance regarding any preservation disputes By seeking to punish only nefarious conduct and by ensuring that the analysis includes a broad range of considerations, organizations could finally have a fighting chance to reduce the costs and risks of preservation. Despite the promise this proposal holds, there is concern among some of the eDiscovery cognoscenti that provisions in the draft proposal to amend Rule 37(e) could water down its intended protections. Robert Owen, a partner at Sutherland Asbill & Brennan LLP and a leading eDiscovery thought leader, has recently authored an insightful articlethat spotlights some of these issues. Among other things, Owen points out that the “irreparably deprived” provision could end up diluting the “bad faith” standard. This could ultimately provide activist jurists with an opportunity to re-introduce a negligence standard through the backdoor, which would be a troubling development for clients, counsel and the courts. These issues and others confirm the difficulty of establishing national standards to address the factual complexities of many eDiscovery issues. They also point to the difficult path that the Civil Rules Advisory Committee still must travel before a draft of Rule 37(e) can be finalized for public comment. Even assuming that stage can be reached after the next rules committee meeting in April 2013, additional changes could still be forthcoming to address the concerns of other constituencies. Stay tuned; the debate over revisions to Rule 37(e) and its impact on organizations’ defensible deletion efforts is far from over.The Global Impact of eDiscovery and Data Protection Laws in Germany
The acknowledged power of Continental Europe is Germany. Its steady economy and stable politics offer foreign companies an inviting prospect for investment. And yet, as organizations explore and begin developing business opportunities in Germany, they often become entangled in a web of unfamiliar legal issues. These issues, particularly eDiscovery and data protection laws, can be a costly and time consuming trap for unsuspecting companies. To avoid becoming ensnared by legal minutiae, attorney fees and lost opportunities, companies should consider gaining at least a basic understanding regarding the German eDiscovery and data protection landscape. Discovery in Germany By way of introduction, it should be noted that Germany, like most European countries, is a civil code country whose legal traditions are distinct from the common law notions that characterize the United States. According to its legal precepts, civil litigation in Germany is conducted in a vastly different fashion than in the U.S. For example, “discovery,” as it is known in the United States, does not exist in Germany. Interrogatories, categorical document requests and requests for admissions are simply unavailable as discovery devices. Instead, Germany only allows a limited exchange of documents, with the parties typically only disclosing information that supports their claims. The U.S. Court of Appeals for the Seventh Circuit recently commented on this key distinction when it observed in Heraeus Kulzer v. Biomet that “the German legal system . . . does not authorize discovery in the sense of Rule 26 of the Federal Rules of Civil Procedure.” The court went on to explain that “[a] party to a German lawsuit cannot demand categories of documents from his opponent. All he can demand are documents that he is able to identify specifically—individually, not by category.” Another key distinction to discovery in Germany is the lack of rules or case law requiring the preservation of ESI or paper documents. This stands in sharp contrast to American jurisprudence, which typically requires organizations to preserve information as soon as they “reasonably anticipate” litigation. Data Protection in Germany Another critical, distinguishing characteristic of Germany’s legal traditions are its notions of data protection and individual privacy. Unlike the mostly laissez-faire approach in the U.S. to data protection, Germany has adopted a comprehensive framework to secure personal information from unreasonable government and corporate intrusions. To guard against such intrusions, Germany has strict requirements that govern any “processing” of personal information. In addition, corporate data processing in Germany must satisfy company Works Councils, which represent the interests of employees and protect their privacy rights. Those protections extend to domestic litigation and international data transfers, to which Works Councils and company Data Protection Officers may object. Another important aspect to German data protection laws are the restrictions they place on transferring personal information across international borders. Companies with offices in Germany must ensure that the country where such data will be transferred has enacted laws that meet EU data protection standards. Transfers of personal data to countries that do not meet those standards are generally forbidden, with substantial fines imposed for non-compliance. This backdrop of complexity suggests that companies exploring business opportunities in Germany should obtain a better understanding of its discovery and data protection laws. There are various resources that provide straightforward answers to these issues at no cost to the end-user. For example, global legal expert James Daley recently recorded two podcasts that discuss the challenges associated with German discovery and data privacy laws. Think tanks such as The Sedona Conference have also made available materials that provide significant detail on these issues, including its “International Overview of Discovery, Data Privacy, and Disclosure Requirements.” By obtaining a greater awareness of the legal workings inside Germany, organizations can more capably develop a cooperative, proactive process for how they will address data preservation and production for cross-border litigation. By so doing, organizations can be better prepared to address potential eDiscovery and data protection snares that are inextricably intertwined with globalization.
Legal Tech 2013 Sessions: Symantec explores eDiscovery beyond the EDRM
Having previously predicted the 'happenings-to-be' as well as recommended the 'what not to do' at LegalTech New York, the veteran LTNY team here at Symantec has decided to build anticipation for the 2013 event via a video series starring the LTNY un-baptized associate. Get introduced to our eDiscovery-challenged protagonist in the first of our videos (above). As for this year's show we’re pleased to expand our presence and are very excited to introduce eDiscovery without limits, along with a LegalTech that promises sessions, social events and opportunities for attendees in the same vein. In regards to the first aspect – the sessions – the team of Symantec eDiscovery counsels will moderate panelist sessions on topics ranging across and beyond the EDRM. Joined by distinguished industry representatives they’ll push the discussion deeper in 5 sessions with a potential 6 hours of CLE credits offered to the attendees. Matt Nelson, resident author of Predictive Coding for Dummies will moderate “How good is your predictive coding poker face?” where panelists tackle the recently controversial subjects of disclosing the use of Predictive Coding technology, statistical sampling and the production of training sets to the opposition. Allison Walton will moderate, “eDiscovery in 3D: The New Generation of Early Case Assessment Techniques” where panelists will enlighten the crowd on taking ECA upstream into the information creation and retention stages and implementing an executable information governance workflow. Allison will also moderate“You’re Doing it Wrong!!! How To Avoid Discovery Sanctions Due to a Flawed Legal Hold Process”where panelistsrecommend best practices towards a defensible legal hold process in light of potential changes in the FRCP and increased judicial scrutiny of preservation efforts. Phil Favro will moderate “Protecting Your ESI Blindside: Why a “Defensible Deletion” Offense is the Best eDiscovery Defense” where panelists debate the viability of defensible deletion in the enterprise, the related court decisions to consider and quantifying the ROI to support a deletion strategy. Chris Talbott will moderate a session on “Bringing eDiscovery back to Basics with the Clearwell eDiscovery Platform”, where engineer Anna Simpson will demonstrate Clearwell technology in the context of our panelist’s everyday use on cases ranging from FCPA inquires to IP litigation. Please browse our microsite for complete supersession descriptions and a look at Symantec’s LTNY 2013 presence. We hope you stay tuned to eDiscovery 2.0 throughout January to hear what Symantec has planned for the plenary session, our special event, contest giveaways and product announcements.
Symantec Positioned Highest in Execution and Vision in Gartner Archiving MQ
Once again Gartner has named Symantec as a leader in the Enterprise Information Archiving magic quadrant. We’ve continued to invest significantly in this market and it is gratifying to see the recognition for the continued effort we put into archiving both in the cloud and on premises with our Enterprise Vault.cloud and Enterprise Vault products. Symantec has now been rated a leader 9 years in a row. This graphic was published by Gartner, Inc. as part of a larger research document and should be evaluated in the context of the entire document. The Gartner document is available upon request from Symantec. Gartner does not endorse any vendor, product or service depicted in the Magic Quadrant, and does not advise technology users to select only those vendors with the highest ratings. Gartner research publications consist of the opinions of Gartner’s research organization and should not be construed as statements of fact. Gartner disclaims all warranties, expressed or implied, with respect to this research, including any warranties of merchantability or fitness for a particular purpose. This year marks a transition in a couple of regards. We are seeing an acceleration of customers looking for the convenience and simplicity of SaaS based archiving solution. The caveat being that they want the security and trust that only a vendor like Symantec can deliver. Similarly the market has continued to ask for integrated solutions that deliver information archiving and eDiscovery to quickly address often complex and time sensitive process of litigation and regulatory requests. The deep integration we offer between our archiving solutions – Enterprise Vault and Enterprise Vault.cloud –and the Clearwell eDiscovery Platform has led many customers to deploy these together to streamline their eDiscovery workflow. An archive is inherently deployed with the long term in mind. Over the history of Gartner’s Enterprise Information Archiving MQ, only Symantec has provided a consistent solution to customers by investing and innovating with Enterprise Vault to lead the industry in performance, functionality, and support without painful migrations or changes. We’re excited about what we have planned next for Enterprise Vault and Enterprise Vault.cloud and intend to maintain our leadership in the years to come. Our customers will continue to be able to manage their critical information assets and meet their needs for eDiscovery and Information Governance as we improve our products year after year.
December Symantec SharePoint Governance Twitter Chat
Join hashtag #IGChat and learn about SharePoint governance and creating effective governance plans Over the years, SharePoint has become a favorite among organizations as a place to share and manage content. As SharePoint adoption increases – storage, performance and on-going maintenance become major challenges, and SharePoint governance becomes essential. Archiving and eDiscovery solutions provide a key part in any effective and lasting governance strategy for SharePoint. In a 2012 survey conducted by Osterman research, the results showed that 39 percent of all SharePoint implementations still don’t have a governance plan. This is due to the fact that implementing governance plans can be difficult. During this Twitter Chat we will discuss the reasons why organizations need SharePoint governance and the role of archiving and eDiscovery in governance plans. Please join Symantec’s archiving/eDiscovery and SharePoint experts, Dave Scott (@DScottyt) and Rob Mossi (@RMossi24) next Tuesday, December 18 at 10 am PT to chat. Dave Scott: Dave Scott is a Group Product Manager at Symantec specializing in social media and SharePoint archiving and eDiscovery. He has contributed articles to a number of leading industry publications and is a frequent contributor to Connect.symantec.com. Rob Mossi: Rob Mossi is a Sr. Product Marketing Manager with Symantec’s Enterprise Vault product team. With a focus on SharePoint, Rob actively participates in SharePoint archiving and information governance thought leadership activities, including research, conferences and social media. Twitter Chat: SharePoint Governance #IGChat Date: Tuesday, December 18, 2012 Time: 10 am PT Length: 1 hour Where: Twitter – follow the hashtag #IGChat Moderator: Symantec’s Dave Scott (@DScottyt)What Abraham Lincoln Teaches about Defensible Deletion of ESI
The reviews are in and movie critics are universally acclaiming Lincoln, the most recent Hollywood rendition regarding the sixteenth president of the United States. While viewers may or may not enjoy the movie, the focus on Abraham Lincoln brings to mind a rather key insight for organizations seeking to strengthen their defensible deletion process. Lincoln has long been admired for his astute handling of the U.S. Civil War and for his inventive genius (he remains the only U.S. President who patented an invention). Nevertheless, it is Lincoln’s magnanimous, yet shrewd treatment of his rivals that provides the key lesson for organizations today. With a strategy that inexplicably escapes many organizations, Lincoln intelligently organized his documents and other materials so that he could timely retrieve them to help keep his political enemies in check. This strategy was particularly successful with his Secretary of the Treasury, Salmon Chase, who constantly undermined Lincoln in an effort to bolster his own presidential aspirations. To blunt the effect of Chase’s treachery, Lincoln successfully wielded the weapon of information: Chase’s letters to Lincoln that were filled with problematic admissions. Doris Kearns Goodwin chronicled in her Pulitzer Prize winning book, Team of Rivals, how Lincoln always seemed to access that information at a moment’s notice to save him from Chase’s duplicity. Lincoln’s tactics reinforce the value of retaining and retrieving important information in a time of need. Lacking the organizational and technological capacity to do so may prevent companies from pulling up information at a crucial moment, be it for business, legal or regulatory purposes. For this and many other reasons, industry experts are recommending that organizations implement a defensible deletion strategy. Defensible Deletion Requires Deletion Such a strategy could have some success if it is powered by the latest in effective retention technologies such as data classification and automated legal hold. Such innovations will better enable organizations to segregate and preserve business critical ESI. And yet, it is not enough to just adopt the preservation side of this strategy, for the heart of defensible deletion requires just that – deleting large classes of superfluous, duplicative and harmful data – if its benefits are ever to be realized. Companies that fail to delete such ESI will likely never come off conqueror in the “battle of the data bulge.” Indeed, such a growing waistline of data is problematic for three reasons. First, it can place undue pressure on an organization’s storage infrastructure and needlessly increase the cost of data retention. It can also result in higher eDiscovery costs as the organization is forced to review and analyze all of that ESI largesse. Finally, a potentially fatal risk of producing harmful materials – kept beyond the time required by law – in eDiscovery will unnecessarily increase. All of which could have been obviated had the enterprise observed the rule of “good corporate housekeeping” by eliminating ESI in a manner approved by courts and the rules makers. For organizations willing to get rid of their digital clutter, defensible deletion offers just what they need so as to reduce the costs and risks of bloated ESI retention. Doing so will help companies make better use that information so, like Honest Abe, they can stave off troublesome challenges threatening the enterprise.
