In a survey of general counsel at US-based companies with annual revenues of $250 million or more, 71 percent of respondents said they spent more than $1 million on litigation expenses. Meanwhile, those that practiced pro-active eDiscovery saved 63 percent.
The duty to preserve is complicated, expensive and more contentious today than it has ever been.
Producing parties have struggled to comply with ever-expanding and increasingly complex responsibilities as electronically stored information (ESI) has played a predominant role in pretrial discovery. The liberal scope of discovery in federal courts, when coupled with ESI’s defining characteristics—its high volume, broad dispersal and dynamic nature—also confounds efforts to conduct discovery effectively and economically.
A proactive approach to eDiscovery describes a scenario in which all end-user data in an organization is automatically and continuously backed up before the duty to preserve is induced. In this scenario, when eDiscovery is necessary, custodian devices do not have to be tracked down and collected by IT to retrieve ESI because files and versions are already backed up in a searchable archive. IT staff, who are typically tapped by in-house counsel to carry out the duty to preserve, can hand off controls to authorized counsel and litigation support personnel. Legal can then immediately administer legal hold by selecting custodians from the employee roster and defining policies governing what types of files are saved and which matters are covered in the hold.
If additional groups, such as outside counsel or human resources require access to preserved data—to evaluate hold details, custodian list, hold history, etc.—a legal hold app that rests on top of a backup solution enables additional permissions to be granted to support collaboration.
Proactive approach to ESI drives down costs of legal hold
Where are the savings? First of all, the courts’ proclivity to broadly interpret what is discoverable under federal rules and the fear of being sanctioned for failure to preserve or produce documents under the vague standards, has businesses issuing wide-ranging document holds on their employees. The resulting amount of information that gets preserved—and the expense to preserve it—staggers the imagination and increases costs. When file preservation is outsourced, vendors measure data volumes and price by “gross volume of data” to include hosting costs against all ingested data or by net volume of data (i.e., the review set remaining after keyword and date-range culling of the gross data volume).
With the Code42 CrashPlan endpoint data protection and security platform, in-house counsel can instantly administer a legal hold on collected and newly created files, set policies via a web app, and collect files for eDiscovery analysis and production with only several taps on the keyboard.
“Our business is to ensure our customers’ endpoint data is protected and secure—so they can easily recover, search and analyze it,” said John Durant, senior vice president of product development at Code42. “In our 5.0 release we responded to customer requests for streamlined legal holds. This is one of a number of investments we’ve made in our platform to assist IT in helping other departments in the organization—such as Legal—solve their business problems.”
To learn more about how endpoint backup can help your organization with legal hold, download the ebook, Building a Reasonable Legal Hold Process with Code42 CrashPlan.