Preservation Wars

Law Technology News  - Monica Bay
Dec 1, 2011
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For the last few years, the legal tech community has monitored e-discovery court decisions with the intensity of a 12-year-old baseball fan keeping score of his team's standings in September. Every twitch from New York's Shira Scheindlin, Baltimore'sPaul Grimm, or Texas' Lee Rosenthal is dissected and discussed on panels and at cafés. Every statement from podiums(Michael Hegarty, Randall Rader) or print(Andrew Peck, Oct. LTN) is analyzed like a blown Red Sox save.

The words "preservation" and "sanctions" send chills down the backs of lawyers on both sides of disputes, especially Baby Boomers who aren't hard-wired with technology like younger colleagues. Wild cases scare and entertain, perhaps none more than Victor Stanley, Inc. v. Creative Pipe, Inc. (http://1.usa.gov/sA9YVC), which Grimm called "the single most egregious example of spoliation that I have encountered . . . in 14 years on the bench." The ultimate award included$1,049,850.04 in EDD sanctions.

But Victor Stanley aside, some observers suggest that a rebellion may be brewing. The defense bar, in particular, is starting to get cranky about what it perceives to be over-burdensome and often vague preservation requirements. On EDD Update, Thomas Allman and Robert Owenhave monitored the activities of the Discovery Subcommittee of the Committee on Rules and Practice and Procedure of the U.S. Judicial Conference. After we go to press, the subcommittee will consider if it should address preservation. Quite a lot of documentation, including comments, has been posted (links are on EDD Update).

Owen, a member of LTN 's editorial board, has proposed five new rules to the subcommittee.Read about his quest for kinder, gentler preservation protocols. Craig Ball sings a similar song with "The Tyranny of the Outlier," asserting that cooperation with your opponents doesn't mean you have to agree to over-preserve data.

Then there are the accidental hoarders. No TV show is yet in the works, but in our cover story, Anne Kershaw presents an urgent plea for organizations to adopt and enforce data retention policies. Not doing so, she strongly argues, is dangerous. Not only does it cost your organization needless dollars but it substantially increases the risk that you could be trapped in litigation you could have easily avoided. Complementing the article, John Chapas offers five New Year's resolutions to help jumpstart your data retention program.

Sean Doherty continues his evaluation of self-collection EDD tools, addressing five vendors who provide web- or network-based options, in "Compare & Contrast."

The above are just some of the elements of our December E-Discovery Showcase that we hope will help you follow developments.

The second interwoven theme of this issue is data security. In 2011, we've seen the rise of both cloud computing and consumer technology — and the risks both generate.

Alan Cohen analyzes the 2011 Am Law Tech Survey, the annual report about technology in top U.S. firms, from The American Lawyer. Soo-young Chang and Daniel Gerber review emerging case law regarding data breaches.

As for reviews, Sean Doherty takes on the Canon imageFormula DR-C125 scanner, which can handle the complex needs of a law practice. Jason Krause details Laplink's PC Lock, a handy utility that encrypts files on computers and can be used remotely to protect data on lost devices.

As has been our tradition, the year's end brings a chance to thank you for your continued support, passion, ideas, curiosity, arguments, encouragement, and humor. As always, this magazine is dedicated to you — our wonderful legal technology community.

As the holidays approach, I again wish you joys small and large; noise soft and loud; enough silence; an abundance of kindness and as little anger as possible; music always; and at least one heaping spoonful of peppermint ice cream.