Rolling the Dice on Legal Hold and Self-Collection: Not Worth the Risk

From the Experts

, Corporate Counsel


Relaxed legal hold processes have long been the de facto means of responding to the duty to preserve electronically stored information in a legal action. This has always been a weak link in the e-discovery process, but two recent court decisions are making that strategy even more risky.

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What's being said

  • Brian E. Schrader

    This is a great article, and along with technology assisted review, custodian self-collection (or really defensible collections generally) is probably the hottest issue in eDiscovery today. And it should be - as the article points out, so many of the eDiscovery sanction cases come down to bad preservation and collection issues. I'd just caution that attorneys and others should not take these cases as a sign that custodians should not be relied upon in the data identification and collection process at all. It's all about a logical, reasonable and balanced approach. Lawyers (and their experts) must lead the process and closely supervise and instruct the custodians, and the custodians themselves should play a meaningful part in the process of identifying potentially responsive files and resources - after all, they were the ones involved in the events that led up to the dispute in the first place! We've been advising our clients and building our software with exactly that balance in mind from the very beginning of BIA. Again - great article!

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