Coping With Preservation and Proportionality in Legal Holds

The panel, "Four Perspectives on Preservation and Proportionality," included Magistrate Judge James Francis, of the U.S. District Court for the Southern District of New York; Lynn Dummett, senior vice president and senior counsel at Allianz Global Investors, and former litigation partner at Sidley Austin; William Butterfield, a partner at Hausefeld, who mostly represents plaintiffs in antitrust litigation; and Robert Owen, a partner at Sutherland Asbill & Brennan, who advises financial services, energy, and innovation companies.

The preservation

Complicating the preservation and proportionality process furthermore is the recent emergence of "bring your own device," said Owen. Legal organizations are learning to cope with the explosion of mobile computers, tablets, smartphones, and other tools. Add to that the proliferation of cloud computing and social media, and collection becomes more challenging by the day. "BYOD is very much a part of life," says Owen, and it brings risks and benefits. "I carry my laptop everywhere," he said.

Butterfield concurs about the diversity of research complicating the EDD agenda. "I am trying to find out what type of information might be relevant, who created it, where it is located -- server? laptop? -- and what is a reasonable way to collect it. So I want a data map and have a conversation [with potential custodians]," said Butterfield, who has long been active in the development of EDD rules. He testified previously the U.S. Judicial Conference Rules Committee when it was developing the 2006 e-discovery changes to the Federal Rules of Civil Procedure, and is active with The Sedona Conference.

Important role

Records managers must play an important role, said Dummett. Part of their responsibility is to verify that business units are following the policies and protocols, she said. "We try to be mindful of our regulatory requirements and balance those against our legal requirements. Regulatory requirements can be lower than legal requirements," she said. "It takes time. It's not easy."