I had the great honor to attend a mini-conference on September 9 held by the Civil Rules Committee of the U.S.  Judicial Conference.  Actually, it was the Discovery Subcommittee that was meeting, along with a number of well-known invited guests.  They included Judge Shira Sheindlin, Judge Paul Grimm, Judge Lee Rosenthal, Judge John Facciola, Judge Nan Nolan, Ken Withers of The Sedona Conference, Jason Baron of The National Archives, in-house counsel from Google, GE, Nationwide Insurance, ExxonMobil, the University of Pittsburgh Medical Center, and various lawyers from both the plaintiff and defense bars.

The purpose of the mini-conference was to follow up from an earlier meeting that took place last year at Duke University, to help educate the Discovery Subcommittee and assist it in developing possible recommendations on whether a rule should be developed addressing Preservation of relevant electronically-stored information (ESI), as well as sanctions for a failure to preserve.  The meeting was broken into three topics:

  1. The nature and scope of the preservation problem;
  2. Technology and preservation; and
  3. What are possible solutions to these problems?

I’m going to report on the discussion held on each of these issues in three different posts over the next few weeks, so today we’ll cover the first topic – how are companies and lawyers dealing with the preservation obligation as it relates to ESI, and what problems are they encountering?

For in-house counsel in the group, there was definitely a common theme:  a fear of spoliation causes most of them to overpreserve.  One lawyer stated that “not preserving asks us to risk our reputation.”  Another reported that his company has had to alter systems simply to deal with preservation (see more on records management, below).

Although the specific issue of the mini-conference was in considering a rule to address preservation concerns, the underlying 800-pound gorilla in the room was apparent to some of the panelists, and definitely to me – information governance.  Many in-house counsel described records management practices that are surely leading to many of the preservation issues being reported.   One defense lawyer stated that the explosion of information is the problem, and to a large extent he’s right – the more information you have, the more you are likely to preserve once the trigger is pulled.  One plaintiff lawyer wondered why more wasn’t being done “to ensure the ‘happy birthday’ email wasn’t being preserved, and she’s also right – there’s a lot of information being kept by corporations that simply is not necessary.  A solid records management strategy can go a long way to making sure the amount of information going into the top of the funnel in a legal matter is as small as it can be, because employees are only keeping the business records they need, for the retention periods they are needed. Unfortunately, I did not hear a lot from this group about what they thought should be done about this – of course, given the subject matter I wasn’t really expecting to hear much on records management.

In my next post on this subject, I’ll discuss the technology issues raised by the panelists at the mini-conference.