The Gibson Dunn Mid-Year Electronic Discovery Law Update – Part 1 from Advanced Discovery gives a great overview of the report .
Sanctions, Legal Hold Processes, Cooperation and Inaccessible Information are looked at in this first blog post. The author talks about one item of particular interest to Answer Maven: Inaccessible Information. Since we are so interested in good information management practices, knowing where data lives and how users access data that caught our attention quickly.
What stood out from the overview was the advice that:
Firms and corporations needing to claim inaccessibility should be prepared to prove that the data at issue is truly inaccessible, before making such a claim.
The Gibson Report points out that the courts have little tolerance for a failure to search ESI.
As in the past, courts continued to have little patience for claims of inaccessibility when a party simply failed to search relevant ESI. See Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350, 358-59 (W.D.N.Y. 2011) (Payson, Mag. J.) (holding that ESI was not inaccessible “simply” because the producing party “elected not to search for archived [ESI],” particularly in light of failure to inform movant of that decision); IOWI, 2011 WL 2038714, at *4 (holding that producing party could not use inaccessibility as a defense for failing to search for ESI “more thoroughly than they apparently did” when they should have “explain[ed] why such a search would be too burdensome, costly or difficult” at the outset).
Thus Answer Maven is confident that Data Maps, good governance and appropriate information management practices and guidelines will serve companies well. In today’s business environment there are few companies that do not create information electronically and the proof is in the pudding when it comes to proving good due diligence in production.
Constance Ard November 9, 2011