When Preservation Requests Are Wielded as Weapons

http://ow.ly/7Mkx9

An article by Craig Ball, Esq. posted on law.com on the LTN webpage.

This article discusses preservation demands by plaintiff's counsel, and the arguments against overly broad demands by litigants that receive these requests.

The author states, "Like the larger bar, plaintiffs' lawyers dream of reducing electronic data discovery to a few forms and checklists. They are no more willing than their opponents to dig into and dirty their hands with data, so they trot out the same recycled forms with little thought as to their suitability or scope.

The fearsome power of the preservation letter hinges on the absurd notion, "If you remind me what the law requires, I might have to comply." In fact, demand letters forge no new duties. The preservation obligations the law imposes can't be broadened by an opponent's demand."

The article goes on to further state, "Corporate counsel vilify preservation: "The plaintiffs demand that we preserve everything, and we're spending millions doing so." If plaintiffs' settlement demands don't establish the value of their claims, why should plaintiffs' preservation demands set the bar for preservation?

They shouldn't. What defense counsel label as extortionate tactics to force settlement through disproportionate preservation are rarely tactical moves."

The article provides input and advice to defense counsel, indicating why it is important for them to know their I.T. infrastructure.  In addition, the article states that plaintiff's counsel is often not sophisticated regarding eDiscovery and this is usually the reason that demands seem unreasonable...plaintiff's counsel quite often doesn't understand the full extent of what they are actually asking for.  The article also states that many of the fears and complaints about eDiscovery are not always rational, and good faith efforts to preserve and produce are the true key to complying with obligations.