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Symantec eDiscovery

Showing posts tagged with retention
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Zubulake Still the Benchmark for Discovery Standards
pfavro | 20 Jul 2011 | 0 comments

It has now been over eight years since Judge Scheindlin began issuing her landmark opinions in Zubulake v. UBS Warburg.  Those orders not only shaped the outcome of that particular case, they permanently changed the discovery phase of litigation.  Discovery no longer begins with Rule 34 requests, the Rule 26(f) conference or Initial Disclosures.  Indeed, it begins long before the filing of a complaint.  Discovery now commences with pre-litigation information management.  For how an organization stores and manages its data will go a long way to determining whether it can meet the demands of discovery in 2011.

This point was highlighted this week by none other than Laura Zubulake in her keynote address at the Carmel Valley eDiscovery Retreat.  As my colleague, Allison Walton, pointed out in her recent...

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The Rule 37(e) Safe Harbor Protects Organizations from Sanctions
pfavro | 13 Jul 2011 | 0 comments

Did you know that Federal Rule 37(e) can really protect your organization from court sanctions?

The Rule 37(e) “safe harbor” provision shields organizations from sanctions when the ordinary, good faith operation of their automated computer systems causes email, archival data and other electronic information to be overwritten and destroyed.  Not without its critics, the safe harbor has empowered numerous litigants to defeat sanctions motions.

Those who have followed best practices for information governance have had the greatest success invoking the safe harbor’s protections.  Such practices include establishing and observing document retention policies.  The Kermode v. University of Mississippi Medical Center (S.D. Miss. July 1, 2011) decision is instructive on this...

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Landmark Sanctions Order Affirmed – Negative Inference Instruction Given to Jury
pfavro | 27 Jun 2011 | 0 comments

The landmark sanctions order in Phillip M. Adams & Associates v. Dell, 621 F.Supp.2d 1173 (D. Utah 2009) has been adopted by U.S. District Judge Ted Stewart.  Finally made available to the public last week after a nine-month delay (http://1.usa.gov/lz5Ekj), Judge Stewart’s order (http://bit.ly/iT5ciG- PACER, sign-up req’d) fully embraced the magistrate’s holding that organizations have an obligation to preserve relevant evidence after the duty to preserve attaches.  The court thus imposed a negative inference jury instruction against defendants Asustek Computer and Asus Computer Intl. for their evidence spoliation.  It should come as no surprise that the jury then returned a verdict against those defendants.

With the Adams sanction order finally in the books, it is worth reviewing why that decision was so noteworthy.

1.  ...

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An “American Style” eDiscovery Trap
pfavro | 15 Jun 2011 | 0 comments

The eDiscovery frenzy that has gripped the American legal system over the past decade has largely eluded our European counterparts.  This is due in large part to the broad and fastidious protections of European privacy laws.  Another reason is found in Europe’s narrower discovery rules, which forbid categorical document requests authorized by the Federal Rules of Civil Procedure.  The result is that many companies that operate in Europe may feel insulated from the need to implement eDiscovery-related information governance procedures.

Having a laissez-faire attitude toward information governance is troubling enough.  But taking no action to prepare for eDiscovery is worse.  That is especially the case for companies operating in Europe that maintain offices in the United States.  They may unwittingly fall into an “American style” discovery trap for unsuspecting litigants in foreign proceedings.  That discovery trap is 28 U....

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Observing Best Practices for Your Litigation Response Effort
pfavro | 14 Jun 2011 | 0 comments

Is your organization adequately prepared for a lawsuit?  Or are you still trying to develop an internal process for addressing document productions in litigation?

Preparing a litigation response effort is an essential aspect of a company’s information governance plan.  Failing to take the initiative in this regard often leads to higher legal costs and increased risks during litigation.  The Vieste, LLC v. Hill Redwood Development (N.D. Ca. June 6, 2011) case from last week is particularly instructive on this issue.

In Vieste, the court sanctioned several real estate developers for submitting inadequate declarations regarding their document preservation efforts.  Those declarations reveal an overall failure to prepare for litigation.  Among other things, the defendant developers did not issue a litigation hold; did not suspend the overwrite function of one of their computer systems; and waited several months to contact...

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Federal Rule 1 and Information Governance - The Bookends of Cost Effective eDiscovery
pfavro | 07 Jun 2011 | 0 comments

The eDiscovery frenzy that has gripped the American legal system over the past decade has become increasingly expensive.  Particularly costly are inquiries into an organization’s data management practices and production efforts.  These investigations are lengthy and often disruptive to business operations.  Just as troubling, they increase the expense and duration of litigation.  Given these cost and delay issues, it is no wonder that jurists are looking for alternative methods to rein in “promiscuous discovery.”  The latest approach is found in Federal Rule of Civil Procedure 1.

Federal Rule 1 establishes a compelling directive that is tailor made for eDiscovery.  More than just a vestigial preamble to the Federal Rules, Rule 1 requires the “just, speedy, and inexpensive determination of every action and proceeding.”

To understand just how courts are recognizing the value of Rule 1’s decree to address...

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$4 Million Sanction for Employee-Delegated Data Management?
pfavro | 27 May 2011 | 0 comments

Several recent court cases have imposed sanctions on companies that unwittingly turn over the duty to manage, archive and discard data to their rank and file employees.  One of the latest examples – Suntrust Mortgage, Inc. v. AIG United Guaranty Corp. (E.D. Va. Mar. 29, 2011) – demonstrates how expensive that approach to information governance can be.

In Suntrust Mortgage, a Virginia federal court issued sanctions against plaintiff Suntrust for falsifying evidence.  Several key emails between the parties that supported the defendant’s arguments were altered by a Suntrust employee to bolster the plaintiff’s claims.  When the truth eventually came out, Suntrust’s credibility – and pocketbook – took a hit.  Indeed, a motion for attorney fees is now pending to recoup the nearly $4 million the defendant incurred to address that malfeasance.

While evidence falsification is an uncommon occurrence...

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Here Come The Bounty Hunters - Are You Ready?
pfavro | 26 May 2011 | 0 comments

The SEC implemented rules this week to create awards for corporate insiders that blow the whistle for violations of federal securities laws.  Where the violations result in fines (referred to as "sanctions") of more than $1 million, the whistleblower may be entitled to a bounty of up to thirty percent of those sanctions.  http://1.usa.gov/kNvsXz

The SEC's whistleblower program is certain to increase the amount of litigation surrounding alleged securities violations.  That was the case when Congress strengthened the whistleblower provisions in the False Claims Act in 1986 to better address federal procurement fraud.  False Claims Act litigation ballooned, with whistleblowers receiving in some cases up to thirty percent of the $2.3 billion that the Department of Justice obtain last year in lawsuits whistleblowers initiated.  http://1.usa.gov/iwCnVv

SEC...

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Learning the Lessons of eDiscovery: Information Governance and the Safe Harbor Provision
pfavro | 20 May 2011 | 0 comments

Are you learning the lessons of eDiscovery history?  Or are you doomed to repeat the same mistakes of those lawyers whose companies and careers were damaged by eDiscovery failures?

While there are many such lessons to be learned, one stands out in particular for companies seeking to minimize litigation risks and reduce operating expenses:  the Federal Rule of Civil Procedure 37(e) safe harbor for the destruction of electronic information.  This provision can be a “get out of jail free” card for savvy organizations that have followed best practices for information governance.

How can your company "play this card"?  For more information, read a brief article from the Daily Journal last month in the following link http://bit.ly/lt2GB7.  Entitled “Learning the Lessons of eDiscovery:  Information Governance and the Safe Harbor,” the...

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Upgrade to Enterprise Vault 10 to Enhance Information Governance
pfavro | 11 May 2011 | 0 comments

Are you still on the fence about upgrading to Enterprise Vault 10?  Yet another reason to get the latest version of Enterprise Vault is that it may help your organization minimize litigation risks.  Who doesn’t want to stay out of lawsuits and reduce litigation costs?

Enterprise Vault 10 can help your organization do so though its Data Classification Services technology.  At its heart, Data Classification Services empowers organizations to establish more effective information governance procedures.  Companies are able to better analyze and retain information that is significant or that must be kept – and nothing else.

Available initially for Microsoft Exchange Server, Data Classification Services intelligently analyzes content as email is archived into Enterprise Vault.  Through established retention protocols, email is then tagged and characterized insomuch that it can be searched for and retrieved with greater efficiency. ...

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