The eDiscovery industry is watching the burden argument erode. eDiscovery service providers are critical to the delivery of ESI to the courts, and must be prepared to perform ESI collection regardless of location. Saying that proprietary environments, such as backup tapes, are not accessible is quickly becoming a thing of the past. Legal teams that use this strategy are exposing themselves to sanctions and fines. Recent 2010 rulings are substantiating this.
First Judge Scheindlin found the plaintiffs in the University of Montreal pension fund case to be grossly negligent for lapses in the preservation and collection of responsive electronic documents. The Judge went on to order the collection of data from backup tapes to those plaintiffs that attempted to cite the burden argument. Read the full opinion here.
Just recently released was the opinion from the Starbucks vs. ADT Security case, where ADT attempted to use the burden argument citing $834,285 to collect five custodian mailboxes. The court found this claim exaggerated and declined to find the information at issue “not reasonably accessible” and ordered the production of the ESI.
The new white paper published by Jeff Fehrman of Integreon shows the real-world data behind this erosion. Performing discovery on the same set of tapes, first in 2005 and again in 2009, Integreon documents the differences in speed, time and cost, then vs. now. Considering the time consuming restoration and manual analysis need in 2005, the burden argument was a valid claim. This new white paper demonstrates that the implementation of discovery technology from Index Engines which nets a 50% savings in time and 75% savings in cost for the same tape discovery project. Integreon’s metrics illustrate that the burden has truly been undone, and why the arguments still claiming it are crumbling. Read the full Integreon White paper; E-Discovery for Backup Tapes: How Technology is Easing the Burden, here.