“The Judge threw out their
claim and much to their chagrin, required the relevant data to be presented.”
As you can see, in the past four years the time involved in this project was reduced from 249 hours to just over 13 hours – or about a 95% reduction.
Now that tape data is easily accessible, it is the most economical source for collection, and also the most reliable since data on backup tapes is not easily tampered with.
As the Burden Erodes Who wants to be in the position of the three plaintiffs who entered Judge Scheindlin’s court during the Bank of
Montreal Pension Plan case? When the plaintiffs claimed burden in collecting ESI for the case the Judge threw out their claim, and much to their chagrin, required the relevant data be presented. Similar is the opinion from the Starbucks vs. ADT Security case. ADT attempted to use the burden argument citing $834,285 to collect five custodian mailboxes. The court declined to find the information at issue “not reasonably accessible” and ordered the production of the ESI.
The courts are becoming more and more educated when it comes to technology. They know what is possible and
have a good idea what it costs to collect. Taking a chance that a case will not have a highly educated judge is a risk. Hence the use of the burden argument is fading away.
About the Author:
Jim McGann is Vice President, Information Discovery – Index Engines. He has extensive experience with the eDiscovery and Information Management and is currently contributing to the Sedona Conference Working Group addressing elec- tronic document retention and production. McGann is also a frequent speaker for industry organizations including ARMA and ILTA, and has authored multiple articles for legal technology and information management publications.
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