Not Just Another "Auld Lang Syne"

Posted on December 31, 2008 by Patti Hutter

On New Year's Eve, we typically gather in a glitter-and-confetti whirl to toast the New Year with champagne…or maybe you're a stay-by-the-fire-and-watch-Times Square type. Whatever your preference to usher in the New Year, you may be interested to know that the singing of the Scottish folk song "Auld Lang Syne" at midnight is not as traditional as you believed - it did not come to yearly use until 1929, when Guy Lombardo's orchestra played it at midnight at the Hotel Roosevelt in New York City, then released a record of it and continued playing it every New Year's Eve afterward.

By the same token, a century from now law firms will no doubt wonder at our tizzy in getting used to electronic document discovery instead of our "traditional" means of producing documents via hard copy. But for now, clinging to the old ways and not making sure that document retention policies are not only up to date but adhered to is costing our clients a mint. As reported by Sheri Qualters in The National Law Journal on December 17, 2008, Kroll Ontrack analyzed 138 reported cases from January to October 2008 and reported that ONE QUARTER of the reported electronic discovery opinions in that period resulted in sanctions issues, while 13 percent addressed preservation and spoliation, 12 percent involved computer forensics protocols and experts, 11 percent, admissibility, and 7 percent, privilege considerations. In one case in the Northern District of California, defendants were sanctioned to the tune of more than a quarter million dollars. Keithley v. The Home Store.Com Inc., No. 3:03-cv-04447 (N.D. Calif., Aug. 12, 2008). That buys a LOT of champagne!

 

It's clear that doing things the way they were done in "old times past" - the literal translation of Auld Lang Syne - will get legal clients in trouble with the Court and could result in heavy financial sanctions. The Court has no "cup of kindness" when it comes to electronic discovery issues. So this New Year, no matter your celebratory preference, resolve to pay attention to your document retention and e-discovery policies, or if you do not have such policies, it's a New Year - a great time to implement a formal policy.

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Quality Not Quantity

Posted on November 14, 2008 by Monika Harris

The adage that "quality, not quantity matters" certainly applies to the maintenance of business records. Businesses often devote numerous hours to developing lengthy schedules defining what records must be kept and for how long. While the development of a comprehensive schedule is important, the quality of the records to be maintained is just as important. Records must be of a sufficient quality to allow companies to defend against legal claims.

One important quality consideration is how to store the records. Records should be stored so that records can be easily located when necessary to respond to a discovery request. Failure to do so can result in burdensome costs.

In In re Brand Name Prescription Drugs Antitrust Litg., 1995 WL 360526 (N.D. Ill. 1995), an Illinois district court required a defendant corporation to sort through volumes of stored email at its own expense. Pursuant to the plaintiff's discovery request, the records had to be formatted before the plaintiff could search and retrieve the email records. The court held that the defendant should bear the discovery cost of $50,000 to $70,000. Reasoning that the translation of data into a useable form by the discovering party is a foreseeable burden because electronic records should be available with the same openness as traditional forms.

As in this case, companies face increasing requests to produce electronic records. However, the take away is that ineffective storage can be risky and costly for both traditional records and electronic records. Therefore, retention programs should consider the quality of records to minimize risk and high costs associated with discovery.
 

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