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In my role as a Senior E-Discovery Attorney, I often provide guidance to organizations in how to develop and implement policies governing data retention and disposition. When developing those policies, it is critical to consider both the business and legal implications of preserving or deleting data and, ideally, find a balance between the two even when the concerns and priorities may not be the same. A recent case highlights what often proves to be a fundamental tension between the perspective of business stakeholders and legal stakeholders with respect to the preservation of ESI for pending or reasonably anticipated litigation in large corporations.

As you recall, in December of 2015, the amended FRCP 26(b)(1) sought to address the escalating burdens associated with data preservation and production by emphasizing proportionality and defining the scope of discovery. As the latest proportionality rulings show, Rule 26(b)(1) is having an impact on limiting the scope of discovery based on the associated expense and some state courts are even following the federal courts’ lead in enforcing proportionality. Interestingly, while expense continues to be a factor in the proportionality argument, parties’ objections on the basis of proportionality have extended to nonmonetary factors as well, including privacy. As a result, some courts are now recognizing privacy as a consideration in determining whether the discovery sought is proportional to the needs of the case.

It takes a minute to come to terms with the definitions of "structured" and "unstructured" data. It seems logical to associate “formatting,” such as the formatting that comes with word documents (indentation, headers and footers, paragraphs, etc.) with “structure,” but the terms are used very differently when it comes to describing data. This blog will explore structured data, particularly as it pertains to the preservation, collection, processing, review and production of such data, using the Slack instant communication tool as an example.

There is often a lot of discussion around the processing and review of documents in a litigation, most likely because these phases end up costing the most money and taking the most time. What is often overlooked, however, is the collection process and how that phase sets the tone for the rest of discovery, including overall case strategy, knowledge gathering and cost thresholds for the case. In this blog, I lay out some best practices that can be followed to collect data in a sound manner while keeping costs reasonable and gathering all relevant information.