Why lawyers agonize over retention policies

Disconnect between Legal and IT staff when it comes to retention policies

Lawyers are worried about saving emails in an archive since they are discoverable records. Nearly every legal action includes an order to produce relevant emails. When your organization is aware that “there is good potential for a legal action” (even before they have been served with a subpoena) you must take formal actions to preserve any records that may be called as evidence or asked for in discovery. This includes notifying people not to destroy email records and tracking responses to the notices (litigation hold). The Federal Rules for Civil Procedure mandate that attorneys “Meet and Confer” to establish the “what do you have and where is it” for all electronic records expected to be searched.Retention Policies

Your organization’s users believe they need to save every email they ever sent or received forever (just in case).

The IT team has to maintain backups and is tasked with making most ediscovery searches – which is time consuming, potentially expensive, and has a large potential for errors. Legal holds may require that copies of current mailboxes and messages on backups need to be recovered and placed in a separate, protected location. While the policy debate goes on, the mass of messages in the email server continue to grow and cause long backup times, potential for longer recovery times, and reduce reliability.

The Lawyer’s Concerns

Judges are getting “tech savvy”. There have been a number of legal cases that set precedence for producing ESI (electronically stored information) and decisions and recommendations by the Sedona Conference (really smart legal people giving analysis reports of important legal issues). They realize the pain and burden or producing the information and the high costs for both parties to review the documents, and the amount of court time taken to go through the evidence submitted. Remember, judges want justice – fair treatment under the law. Most judges would like parties to settle every case before it ever makes it to court.

Outside legal counsel is on the hook, personally and professionally. They realize when they sign a pleading (legal document presenting responses and arguments to the court) that they can be fined, sanctioned if later the information about the ESI is found to be untrue. So now they are more concerned with the details of where the data is and who has control of it. Many cited examples of how internal counsel had not provided requested information because it was difficult to produce. They also were worried about producing “privileged documents” in the haste to deliver information to the opposing party. There has been a recent court case setting precedence that makes it easier to “claw back” inadvertently disclosed privileged data. The overall result is that outside counsel wants to spend more time (read money) reviewing the information before it is produced – first pass by a para-legal, next by an associate, then by the litigator.

Inside legal counsel is stuck between a rock and a hard place. They are being mandated to cut legal costs however they can. So they strong arm negotiate with outside legal counsel for better rates (30-40% reduction is not unusual) and decide to do more work with in house staff. The highest expense in ediscovery is in the review of the information (how many eyes and at what costs for each email or document). With the potential for hundreds or thousands of emails needing review at an average cost of $160 per hour you can see the obvious problem and the “disconnect” – if you have less information, then you lower legal costs.

Unfortunately, many lawyers’ technical knowledge only extends to their use of Microsoft Outlook or Lotus Notes.

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