Comments on: In-House Counsel Sanctioned for Failing to Monitor the Preservation of Electronic Evidence http://www.compliancebuilding.com/2009/12/28/in-house-counsel-sanctioned-for-failing-to-monitor-the-preservation-of-electronic-evidence/ Doug Cornelius on compliance and business ethics for private equity real estate Mon, 13 Feb 2012 12:56:20 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Jason Mark Anderman http://www.compliancebuilding.com/2009/12/28/in-house-counsel-sanctioned-for-failing-to-monitor-the-preservation-of-electronic-evidence/comment-page-1/#comment-3788 Jason Mark Anderman Mon, 04 Jan 2010 18:19:02 +0000 http://www.compliancebuilding.com/?p=5492#comment-3788 Well, that's great to hear for someone like me in cloud computing! Well, that’s great to hear for someone like me in cloud computing!

]]> By: Doug Cornelius http://www.compliancebuilding.com/2009/12/28/in-house-counsel-sanctioned-for-failing-to-monitor-the-preservation-of-electronic-evidence/comment-page-1/#comment-3785 Doug Cornelius Mon, 04 Jan 2010 14:38:50 +0000 http://www.compliancebuilding.com/?p=5492#comment-3785 Jason - As you point out, records management is a huge problem for most organizations and grows harder as the organization grows. This case was particularly egregious because it seems like they didn't even try to preserve the evidence. The problem with keeping everything forever, besides the cost, is it makes it hard to find the relevant information. A scarier example was the Coleman v. Morgan Stanley case http://www.4dca.org/opinions/Oct%202009/10-07-09/4D08-4022.op.pdf, originally having a $1.5 billion verdict because the discovery production was so poor, the judge switched the burden proof and disputed facts were deemed true. One of the big problems is the decentralization of information on individual computers. I think in-house counsel will start liking cloud computing because it centralizes information and makes it easier to manage the digital records. Jason -

As you point out, records management is a huge problem for most organizations and grows harder as the organization grows. This case was particularly egregious because it seems like they didn’t even try to preserve the evidence.

The problem with keeping everything forever, besides the cost, is it makes it hard to find the relevant information.

A scarier example was the Coleman v. Morgan Stanley case
http://www.4dca.org/opinions/Oct%202009/10-07-09/4D08-4022.op.pdf, originally having a $1.5 billion verdict because the discovery production was so poor, the judge switched the burden proof and disputed facts were deemed true.

One of the big problems is the decentralization of information on individual computers. I think in-house counsel will start liking cloud computing because it centralizes information and makes it easier to manage the digital records.

]]> By: Jason Mark Anderman http://www.compliancebuilding.com/2009/12/28/in-house-counsel-sanctioned-for-failing-to-monitor-the-preservation-of-electronic-evidence/comment-page-1/#comment-3721 Jason Mark Anderman Mon, 28 Dec 2009 21:57:51 +0000 http://www.compliancebuilding.com/?p=5492#comment-3721 Preservation cases like these make me wonder whether any big organization, that is simultaneously handling multiple lawsuits, should never delete anything due to the risk of being sanctioned. Ultimately, this would require a great deal of expense to force all users to save everything on servers, and buy a huge number of servers to store all the data. Otherwise, especially if you have tens of thousands of employees, the ability to take affirmative steps to ensure that potential evidence is preserved is incredibly difficult. After all, many companies aren't even able to effectively put a litigation hold in place. These companies have strict limits on the amount of email you can store on servers, and force their employees to archive their email on their hard drives. I can't even imagine the time and resources that would be needed to effectively enforce a litigation hold for thousands of hard drives. Preservation cases like these make me wonder whether any big organization, that is simultaneously handling multiple lawsuits, should never delete anything due to the risk of being sanctioned. Ultimately, this would require a great deal of expense to force all users to save everything on servers, and buy a huge number of servers to store all the data.

Otherwise, especially if you have tens of thousands of employees, the ability to take affirmative steps to ensure that potential evidence is preserved is incredibly difficult. After all, many companies aren’t even able to effectively put a litigation hold in place. These companies have strict limits on the amount of email you can store on servers, and force their employees to archive their email on their hard drives. I can’t even imagine the time and resources that would be needed to effectively enforce a litigation hold for thousands of hard drives.

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