Mary Mack, writing in The Metropolitan Corporate Counsel, has a nice piece on big data discovery after the Rambus decision. (TMCC) Below are some key take-aways.
Here's the problem in a nutshell:
After a very expensive e-discovery exercise, one legal department requested a report on files that were a year past their retention date and that were categorized as nonresponsive to litigation. They found that more than $5 million was spent reviewing those documents – documents that could have been disposed of well in advance of litigation. Other companies, large and small, are intimidated by the file shares and SharePoint sites that have no accountable steward that grow unmonitored. Almost all companies have at least one legal hold, and with no one accountable to ask, the file shares and SharePoint sites might be assumed to hold potentially relevant documents.
Regarding the Rambus decision:
The recent Rambus case (Hynix Semiconductor, Inc. v. Rambus, Inc., No. C-00-20905 RMW (N.D. Cal. Sept. 21, 2012)) provides guidance to avoid spoliation of evidence charges. The disposition should not take place as part of a litigation plan. Records and data should not be destroyed wholesale when litigation is reasonably foreseeable. The officer in charge of destruction should understand and be accountable for the enterprise’s litigation hold and preservation responsibilities. The disposition of records should be content neutral and apply to a wide variety of documents, not only documents that are frequently responsive to a certain type of litigation. The motivation should not be to dispose of potentially harmful documents. A record should be kept of what was destroyed, by whom and when, with an accounting of the retention policy, the actual practice and the monitoring of results.
Hat tip Teddy Angelus. (P|A)