General counsel and e-discovery counsel from large corporations and other organizations argued for e-discovery reform last month, but some of their complaints might be caused more by their own practices than by the burden of e-discovery rules. In September, the Judicial Conference Subcommittee on Discovery held a mini-conference on preservation and sanctions in Dallas to discuss what problems or issues organizations were having in preserving electronically stored information (ESI).
Many of the in-house counsel speakers made some strong arguments that the Federal Rules of Civil Procedure and current discovery landscape was overly burdensome. Yet their self-described practices for litigation readiness and e-discovery can be described as lacking. However, with a few adjustments to their litigation readiness and records management programs, these in-house counsel might find the rules less onerous.
Here are some examples of adjustments that they may benefit in-house counsel:
- In-house counsel for a large technology company stated that there are technical limitations to selectively preserving email. Huh? Email archiving allows either individual emails, emails from an individual, emails with specific keywords or an almost unlimited number of different permutations of emails to be saved defensibly in an archive. There also are a number of tools that can grab email from someone’s desktop.
- Counsel for a large energy company complained how, on average, they preserved 10 times more data than they ever collected. Would an ESI data map have prevented this problem? Creating a map that details what types of data are located where allows defensible yet narrower legal holds. You are not required to save everything if you know what you have and where it is.
- In-house counsel for a large health care provider lamented the fact that they consistently preserved multiple copies of the same emails on backup tapes and also stated that they may never look into records management to ease the burden of discovery. First, backup tapes make a lousy archive mechanism. Next, records retention programs not only help you identify what you need to save, but also allow you to defensibly delete everything else. Without a good records retention program, data simply accumulates, increasing the burden of discovery. And yes, records retention programs can be executed even in the midst of significant litigation.
Keep in mind that these comments are not from small or mid-size organizations with low litigation profiles being hit with their first class-action lawsuit. Rather, these were from very large organizations experiencing high litigation levels year after year. One would also think that the discovery costs incurred by these organizations would provide an easy ROI to become litigation-ready.
I very much agree that the rules surrounding e-discovery need to be reformed, and that the burden these rules place on companies can be very expensive. But in the absence of change, there are many things companies can do to reduce their e-discovery spend just by being smart about the way they approach litigation readiness. Complaining that the rules need to be changed when you’re not really trying makes a weak argument.