Records Spoliation: A Real World Example From Today’s Headlines
Tuesday, February 27th, 2018This morning, LegalTech News ran a timely story on the case between Central European News and Buzzfeed over allegations of fake news. (Leidig v. Buzzfeed) Fake news is news these days, but what got our attention was discussion of the shifts from the court in the willingness to tolerate improper records retention, that resulted in spoliation, incomplete production, and the assertions from the bench that attempting to hide (or distract) the ball when it comes to E-Discovery is an outmoded strategy that needs to end.
In particular, we noted a couple of key points in the article that surface in some of our technical conversations about our retention solutions.
- No special effort was made to preserve document concerning the Buzzfeed piece. ”Plaintiff “was instructed by counsel to preserve evidence only evidence only after the lawsuit was filed.”
With the increased ease of communications retention, the argument that it is too expensive or not a high enough priority is one we commonly see. The Information Security and Compliance staff often are proactive in trying to address retention but are often shut down by others in the organization who do not yet see the need. Often the conversation changes radically once a team has had to go through a production effort, at which point data may no longer even exist. Most organizations can expect legal action as a course of business. Judges are signaling that a lack of retention is not an acceptable practice.
- Metadata was inadvertently modified and deleted when the plaintiff attempted to manually move files to a production repository.
What happened here was spoliation: data was moved from one location to another in such a way that the metadata was modified or even removed. Here’s a real-world impact of what can happen when a technical decision to treat data in a more casual unstructured manner has repercussions to the bottom line. Often people look at our retention solutions; and then try to go and make low cost workarounds that involve pushing or copying data from one system to another without understanding the impact to not only the record, but the impact when challenged in court. We see it time and again, and we’ve yet to see a long term successful outcome when attempting to short-cut proper retention protocols.
However, technology is just part of the issue. In a recent judges’ report cited in this article, “30 active federal judges said the problem with e-discovery for most attorneys isn’t process or technology, it’s an overly adversarial mindset. When asked how attorneys could best improve e-discovery practices, the No. 1 response given was “cooperating with opposing counsel.”
Legal counsel likely fears what exists in their data, or the effort to review and produce. In reality, proactive retention with technology like our Communications Archiving Suite can help organizations respond faster at lower cost because data can be found, and put into context while maintaining good records retention hygiene.
We agree. ” It’s not personal, it’s E-Discovery.”