Wednesday, February 3, 2010

To Preserve or Not To Preserve? That is the question

Hey IT-don’t accept the quiet delegation by the lawyers of determining relevance in a lawsuit. Err-Maybe overly broad(preserve everything) legal holds are not good. Err-Hey lawyer do your job and tell me, IT, what to preserve based on the facts of YOUR case. Lawyers (some of the lazy or fearful ones) like to lock down the whole place when they learn of a lawsuit. Keep everything just in case is their battle cry. Well its bad guidance most of the time, unless really required. Stopping the inner workings of the IT shop to preserve everything, creates a whole host of new issues. So don’t bite until you make the lawyers show you why it’s needed. Case in point. The Federal Court-7th Circuit are developing principles to better manage e-discovery. The E-Discovery Committee’s stated goals are “the fostering of a better balance for the ‘just, speedy and inexpensive’ determination of cases…”

Under proposed Principle 2.04 (Scope of Preservation)
(a) Every party to litigation and its counsel are responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody or control. Determining which steps are reasonable and proportionate in particular litigation is a fact specific inquiry that will vary from case to case. The parties and counsel should address preservation issues at the outset of a case, and should continue to address them as the case progresses and their understanding of the issues and the facts improves.

Whether or not it becomes the “rule” or not, it’s good guidance to you. The courts don’t require everything needs to be preserved, so don’t do it just because.

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