If corporations succeed in managing and preserving information, will e-discovery collection problems disappear?
I’ve previously written about “e-discovery convergence,” the idea that enterprise “information life cycle” management products may reduce or eliminate the need for EDD collection.
Is Preservation in E-Discovery Overrated? at the Clearwell blog (23 June 2008) argues that because litigation holds are inevitably imperfect, corporations should instead focus on rapid collection of relevant documents: “the best way to take the risk out of the legal hold process is to move very rapidly from preservation to collection.”
I view this conclusion, as I do many others in EDD, as a hypothesis that requires empirical testing. Since I lack data, I can only respond conceptually. Litigation holds are more of a “flow” than a “stock” (flows and stocks are standard ideas in accounting and economics). Collecting data at one point in time is often not enough; corporations frequently have an obligation, arising from one or more cases, to preserve data over an extended period – a “flow”. If the obligation continues as a flow, I don’t see how rapid collection helps very much. If, in contrast, there is no ongoing hold – the collection is a “stock” – then the proposed strategy seems to have merit.
One reason to take an empirical approach is that answers may change over time. Consider that companies have multiple reasons to control information. Beyond litigation holds, factors such as storage costs, knowledge management, compliance requirements, and protecting trade secrets drive preservation considerations. With multiple reasons to preserve – or destroy – data, it seems inevitable that companies will focus more effort on preservation and destruction. If so, some of the current risk of lit holds may diminish. That said, I think the points in the Clearwell post about rapid collection to assess requirements and narrow the focus has much merit given where information management is today.