Confronting E-Discovery's 'Ill-Defined Preservation Obligation'

Preservation is far and away the most cited trouble spot of e-discovery. It's an area that can land both the client and the lawyer in hot water and one, lawyers say, is fraught with broad, vague standards.

So should clients simply preserve everything at the first sign litigation may be forthcoming?

"My 3-year-old could give that advice," said David J. Walton, the co-head of Cozen O'Connor's e-discovery task force. "Lawyers have to have the guts to make the tough judgment because if you say preserve everything to a client of any size, it will overwhelm you."

It's one thing to preserve the data and quite another to collect and produce it all, he said.

The 2010 Southern District of New York case Pension Committee of the Montreal Pension Plan v. Banc of America Securities made clear a written litigation hold notice was required by the attorney as well as a continued monitoring of the client's preservation policies. But other courts have come down since Pension Committee and not required written hold notices.

LDiscovery's Leonard Deutchman said a party's duty to preserve begins at the first instance litigation might be expected. Sometimes that is obvious, like when the Deepwater Horizon exploded, there was immediately an expectation that litigation might follow. But it's not always that clear. The duty in an employment discrimination case doesn't begin when the employee files a claim with the EEOC, for example, but as early as when he walks out the day he was fired saying "'you'll hear from my attorney,'" Deutchman said.

To Continue Reading: Click Here
--------------------------------------
Source: law.com
By: Gina Passarella