Legal Hold Pro

LegalTech 2012: Don’t Take Your Eyes Off of the Preservation Ball (Or Four Reasons Why Predictive Coding Isn’t for Everyone)

Last week we celebrated the annual rite of passage that is LegalTech New York. By all accounts it was a successful year with record attendance, bustling Exhibit Halls and non-stop presentations.

Leading up to the conference, Law Technology News wrote about the expected buzzwords which pointed to “predictive coding” (a.k.a. “technology assisted review”), “social discovery,” and “Big Data.”  Hardly a presentation was heard that didn’t include these buzzwords being liberally sprinkled throughout.

Yet it’s interesting to think back just two short years to LegalTech 2010. Pension Committee had just been issued, reaffirming the importance for a robust legal hold process. Judge Scheindlin, and numerous jurists since, reminded the legal community of the need for and rationale of sound litigation holds.

With all the hype around this year’s buzzwords, it’s crucial that we not regress into thinking data preservation is no longer a concern.  In fact, all the “predictive coding” in the world won’t protect you from the corresponding sanctions (self-imposed or otherwise) that result from inadequate or ill-informed preservation practices.

So, with that as a backdrop, let’s look at

Four Reasons Why Predictive Coding Isn’t for Everyone:

Reason 1 – Having an effective preservation strategy will save you more than predictive coding.

Organizations spend too much, too early in the e-discovery process. As described at the Dallas Mini-Conference in September, GCs are over-preserving due to the “reputational fear of being sanctioned or even accused of spoliation.” By putting a solid legal hold and preservation process in place that is defensible, it provides more leverage at the Rule 26(f) ‘Meet and Confer’ to limit the scope of discovery. Further, a manual legal hold takes three times the amount of staff time as an automated legal hold process.

Reason 2 – Focusing on defensible litigation holds will make you thinner than predictive coding.

To be fair, it will make your collections thinner. As one GC noted in Dallas, “we are overdoing it by 90 percent.” With a sound preservation strategy, which Craig Ball refers to as “preserving carefully,” companies can right size their collections efforts to minimize the amount of data that requires subsequent handling, processing and production. At $500 or more per gigabyte, the less data the better.

Reason 3 – Courts haven’t punished anyone for bad “predictive coding” practices.

That’s not an apples-to-apples comparison, obviously, but the point is courts are demanding better preservation. Predictive coding still needs its day in court; whereas preservation practices no longer enjoy that reprieve and are scrutinized and frequently challenged. Read about recent cases here.

Reason 4 – Number of trigger events requiring a legal hold: 100%. Number requiring review: Less than 10%.

The number of reviews that seriously need “technology assisted review” remains minimal. For litigants facing large discovery data volumes, such advances in technology will undoubtedly help produce the most prescient information in less time and at less cost. Yet every company involved in litigation, regardless of size or frequency, must be familiar with and implementing preservation best practices (written holds, reminders, custodian acknowledgment, etc.)

While we’re trying to be somewhat lighthearted to make a point, the facts are that most legal teams still need to make strides toward fortifying their preservation practices. The bar is high and the courts are clearly impatient when dealing with possible spoliation. If you aren’t confident in your process, make 2012 the year you get your legal hold “house” in order.

To learn more, you may want to review “Intelligent Preservation” which suggests new approaches to lowering electronic discovery costs.

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