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Does Preservation = Suspending Disposition?

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Preservation: It’s a simple term we often see used throughout the industry. But the activities associated with preservation can and must take place based in different contexts. For example, as part of an on-going, “business-as-usual” process, records and critical reference materials should be preserved to ensure ready access for users. Alternatively, when a legal hold is issued, a firm has an obligation to preserve any relevant materials related to the discovery request.

Wait a minute: If a firm is preserving electronic materials in the normal course of business, why would it have to preserve the electronically stored information (ESI) again as a result of a legal hold?

The answer depends on whether a firm is actually disposing of ESI on a regular basis. If everything is kept “forever,” meaning no systematic and rational process is employed to delete and destroy content, then preservation as a result of a legal hold is easy – it should already have been done. Just send out a reminder (i.e. hold notice) to custodians just in case, and a firm’s obligations are satisfied.

But for those firms that do dispose of content in a systematic manner, preservation now becomes a process of suspending disposition. This can be complicated.

Consider a firm that may have 50 active legal holds, spanning 4 years. Perhaps 10% of the content under legal hold applies to two or more discovery requests. The content includes email, snapshots of database records, system-generated reports, and operating policies stored on network drives. Across the 50 legal holds, more than 250 custodians are involved, each with over 2GB of ESI they feel warrants preservation.  

No wonder it takes a small army of people and millions of dollars to sort this out. And because of this effort, the easy path (and the cheap one, from an operating perspective) is to preserve everything and dispose of nothing. I do believe the situation will improve over the next 5 years as the automated tools become more sophisticated and recordkeeping practices more refined, but it will be a long haul.

James Watson, Jr., PhD can be reached at 312-881-1620, jwatson@doculabs.com, or Tweet me @jameswatsonjr

Comments

Submitted by Rich Lauwers July 09, 2010 - 4:14 PM

I was very surprised to see your conclusion "the easy path ... is to preserve everything" but I agree with the statement. Some businesses will have a profile that lends itself to full preservation, especially when litigation response profile is "defense in depth". I would also present an alternative. The business profile could warrant full preservation for a small sub-set of the full ESI. Buy developing a reasonable decision process for ESI that is "likely" to be covered in a legal hold you can limit the full preservation processes to those repositories or documents that warrant it. Allowing suspension of disposition to be manged as an exception.

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Submitted by Greg Cook July 16, 2010 - 3:07 PM

I disagree slightly with the comment made "the easy path...is to preserve everything".

It might appear to be the easiest path to records management, just throw money at the problem by buying more storage and supporting hardware in order to keep everything forever. However, the costs start to add up once you realize all the different security audits that have to be put in place to ensure nothing gets deleted.

If a single user deletes a single document, you are now out of compliance with your "keep it forever" plan. This single transgression can take a normal lawsuit and turn it around into an e-discovery suit quickly. Your company can go from playing offense during the initial lawsuit to playing defense in the courtroom trying to explain how this document was deleted, what was on the document, how it was deleted and why it was deleted.

Everyone wants the benefits derived from a successful ECM environment. But, until it hits the bottom line, most companies don't want the responsibility of properly managing that information and ensuring it was handled properly during the entire lifecycle of the document.

The easy path is truly to plan up front and document the entire document lifecycle. Sure, it is a lot of work and much of that work is not quick or easy to accomplish. But, once completed, maintaining and enacting the proper steps of the document lifecycle becomes the easy path in the end.

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