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E-Discovery: Preservation Means Knowing When to Hold 'Em

The fourth of a six-part series on e-discovery from the Taneja Group .

In the court case Consolidated Aluminum v. Alco, the defendant suffered monetary sanctions for failing to properly apply litigation holds. In spite of the fact that Alco had a litigation hold policy in place, someone was asleep at the wheel. There were several serious issues: Alco issued the holds after litigation had begun, did not make the holds broad enough, and did not enforce holds when key employees deleted relevant data.

One of the federal rules of civil procedure's strictures requires that companies demonstrate consistent litigation hold practices. This does not mean that litigation holds must be issued willy-nilly. No one (with the possible exception of opposing counsel) believes that a company must lock up all its active data in case of potential relevance, no matter how slight. However, litigation holds do come into serious play when looming litigation is "reasonably anticipated" and when data has high potential relevance, no matter where it may be located.

This area is another example where human oversight and e-discovery technology can and should work together. Attorneys and IT should work together to decide what electronically stored information (ESI) should be retained for upcoming discovery actions, which individuals have custody of the relevant ESI, and where the files are located -- fileshares, email servers, archives, laptops. Once these decisions are made, then the firm can use e-discovery tools to search for and hold the relevant data.

There is a distinction between application- and system-specific litigation tools and newer e-discovery litigation-hold software. With application-specific tools, the organization must use a content store's individual hold tools. For example, if potentially relevant ESI is located in a content management system then IT would use that system's internal controls to place holds on data. If the ESI is located in an online archival system, then IT must modify system settings to exclude relevant ESI from deletion or migration activities. If the ESI is on tape, IT must either search the tapes and pull the relevant tape from the rotation schedule, or copy legacy tape data back onto networked storage systems. And if ESI is located on remote systems, then IT must find a way to search and hold it anyway, or hope that recent court decisions in favor of remote legal holds will not apply to them. (This is likely to be a vain hope.)

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