Category: Estorian Looking Glass

“If it really costs millions to do that [e-discovery], then you’re going to drive out of the litigation system a lot of people who ought to be there.” This quote by Supreme Court Justice Stephen Breyer cuts to the heart of current issues surrounding eDiscovery. A recent DCIG blog highlighted how out of control litigation costs have become and have left companies with hard decisions on whether it is best to settle cases based solely on the cost of eDiscovery or attempt to litigate. But as companies face unprecedented economic pressure, a key question comes to mind, “Are these costs driving risky data retention strategies such as destroying all of your data?”

“There is no truth if you cannot find relevant evidence and, unless companies get their eDiscovery act together, eDiscovery is about to destroy the American System of Justice as we know it.” That statement summarizes the opening remarks that Ralph Losey, the noted eDiscovery attorney of FloridaLawFirm.com, made during a recent presentation. From there, he went on to explain why he believes most organizations – public or private, large or small – have no viable strategy for eDiscovery and why a reactive approach to eDiscovery is putting the viability of the American System of Justice as we know it at risk.

DCIG has posted several blogs discussing the economic downturn, the banking crisis and the role that hedge funds played in the seemingly endless stream of bad news and frauds that have graced the headlines. So, when it was announced that the prominent hedge fund Pequot Capital was shutting down due to the SEC reopening an insider trading probe, it was another sign that the largely unregulated hedge fund industry is back once again in the SEC’s crosshairs.

It isn’t often that bipartisanship wins the day among politicians, but when an issue arises that stirs the ire of the public such as the credit card industry has done there is a sudden ability to get things done. This was evident in the recently passed Senate Bill 414, more commonly referred to as the “Credit Card Act of 2009.” In an amazingly bipartisan vote of 90-5 the bill passed.

On March 15th, 2009, a new law went into effect in the European Union (EU) that set in motion a controversial new course for government access into digital information. The EU Data Retention Directive was derived from the perceived need of the EU’s member states to protect national security or public safety. Its goal is to provide law enforcement the access to information it needs to protect public and national interests but it may go too far by capturing too much public information that the public may not view as so public

A current patent infringement lawsuit has provided a great reminder of why email retention policies and procedures as well as archiving technology are invaluable in today’s eDiscovery environment. While discussing policies and procedures can be a mind numbingly boring exercise, this case provided some great reminders as to why they are important in setting the groundwork for a robust and defensible eDiscovery process.

If you are like me, trying to comprehend the logic behind the current bank bailouts and the billions of taxpayer dollars being infused into the financial sector is becoming harder, not easier, to understand. For instance, Bank of America (BofA) just reported receiving $20 billion dollars in bailout money as well as loan loss commitments of another $97 billion from the federal government. Yet with BofA taking billions of unearned dollars, what can their customers expect in return? Not a thank you, as one might expect, but instead a slap in the face.

It isn’t just businesses that are hurting in this down economy. As companies cut back it is having repercussions everywhere and local, state and federal government are not exempted from these cutbacks even as their requirements also increase. Case in point, a recent case decision handed down determined that the SEC must comply with the Federal Rules of Civil Procedure (FRCP) just like “any other litigant” that puts the same burdens of eDiscovery and legal holds on governmental agencies that previously only affected private organizations.

On January 13th, 2009, a ruling in the S.E.C. v. Collins & Aikman Corp was handed down in what is sure to become a landmark ruling. What makes this an important ruling? Judge Shira A. Scheindlin ruled that the SEC had to abide by the Federal Rules of Civil Procedure (FRCP) just “like any other litigant.” This could have ramifications across government entities as the FRCP increasingly touches federal, state and local governments. It is already a well documented fact that the FRCP is changing how private industry manages its data but this ruling sets out numerous areas in which the SEC failed in its internal eDiscovery processes and rightly was held accountable.

If the market needed any further reason to feel investor angst, Research In Motion (RIM) (NASDAQ: RIMM) seemed more than happy to step in and fill the gap. Already there are plenty of headlines to feed the pessimism in the economy ranging from Madoff Hedge Fund scandal a month or so ago to the more recent Stanford Group scandal. But when the SEC announced on February 17, 2009, that several current and former executives at RIM had reached a settlement involving an options fraud scheme, it is being to feel like greed and fraud knew no bounds.