This links to an interesting discussion of the burdensome and costly argument in an eDiscovery production.  This points to the need to preserve whether or not the information is required to produce.

“In the courts view, whether defendants had deleted e-mail that should have been preserved was a relevant factor in determining whether it would be prohibitively burdensome or expensive to retrieve the archived e-mail.”

Handling the litigation hold correctly is a good way to avoid costly issues as litigation progresses.  Understanding the possible places information could reside, identifying the possible parties of interest and taking appropriate preservation actions seem to make for happier judges.

Spoliation is mucky ground.  Keeping your  processes updated will let you stay high and dry and there will be no debate on what and when to hold data near.  A bit of upfront preparation will save you from an unnecessary dip in the quicksand and keep you on the good side of the law.

Constance Ard March 15, 2011