February 22, 2008
Breaking through the ESI Inaccessibility Wall - Feature Guide
My latest article, "Breaking through the Inaccessibility Wall -- A New Angle", is published in the current February/April 2008 issue of Litigation Support Today magazine. You can download the PDF reprint here.
Corporate counsel struggling with records retention should be among the first to read this, as their regular business information can be used against them in unforeseen ways. Indeed, my alternate title for this practical guide is "Call the Help Desk, Your Accessibility is Showing". From discussions with various corporate and outside counsel, a common misconception under the new rules is that backup tapes are an inaccessible “safe harbor” media as long as one asserts they are only used for disaster recovery. Depending on the specific facts, this could prove to be a costly assumption as newer decisions consider the totality of the burden and cost under Rule 26(b).
As a result, I suggest a novel but very practical approach to challenge or confirm an opposing party's assertions using business intelligence methods and their own data. In accessibility matters, courts are increasingly demanding objective data on which to base their discovery rulings rather than relying upon subjective arguments and affidavits claiming excessive time and expense are required. It’s also contemplated in the Committee Notes regarding sampling and other techniques.
As an example, corporate help desk logs can be used to quantify the frequency and purposes for which backup media are being accessed. However, other seemingly mundane systems and data may be useful and relevant. This further illustrates why companies continue to need savvy e-discovery professionals to bridge the legal/IT gap and identify opportunities and weaknesses others have missed. I also provided an update on how the backup technology landscape is changing and what you should know about it when dealing with ESI accessibility issues.