As I listened to an interview with Mary Trump about how she turned over financial documents to the New York Times it got me thinking about all the incredibly sensitive information just parked at firms world wide for inactive/settled matters. Fred Trump’s contested will was settled in 2001. Those 19 boxes of documents sat at her law firm for roughly 17 YEARS before she had them loaded into a rental truck and delivered to the reporters waiting in her driveway. Considering some of the matters that I have run discovery on, this scenario gives me nightmares. Back when I was a corporate discovery manager in 2000 I ran into serial plaintiffs that shared and stored our productions for reuse in their next matters. I caught them with subtle watermarks in the bates numbers and we were able to put a protective order in place that mandated return or destruction of my company’s productions after cases were settled.
That experience taught me the value of tracking collections through productions to make sure that retained and opposing counsel have formal notifications of the client’s dispensation policies. Some clients want it all back (depending on the format). For others I have drafted destruction log forms to be signed and returned. The important point is the realize that just because ESI or scanned paper has been collected does not mean it is safe or exempt from retention schedules once the matter is closed.
When doing a discovery assessment for new clients I always ask to see their central tracking tools (usually Excel or Sharepoint). The legal team should be able to quickly find all active/closed matters with collections (even those pesky custodial interview thumb drives). For any given custodian they should be able to see prior collection descriptions, volumes and productions. For closed cases there should be a dispensation/destruction policy in which the managing counsel classifies the matter or general docket of matters for immediate disposal, permanent retention or sets a periodic reminder for cases that might appeal. Your retained counsel, opposing counsel and hosting provider need clear instructions to bury those boxes of bones instead of leaving them moldering in the closet.
Beyond the raw collections and productions, the team needs a clear policy and protocol on review work product. Several years back I did a lot of research on reuse of discovery work product for efficiency and risk reduction. Back then, there was interest but little actual adoption outside of specific dockets where the same ESI/documents got produced over and over again. Few of the major hosted review platforms supported central single instance storage across matters or sharing classification or review metadata. Relativity and others were built for service providers to carefully keep different client’s data segregated, so sharing ESI across matters was always a low priority. But that work product is expensive and valuable. I now recommend identifying all work product fields and exporting them with the control numbers, hash values and any attachment IDs even when deleting a matter. That little trick has already saved me and one client a huge fight when we were able to confirm that a specific document was not part of a closed case collection.
My big take away from Mary Trump’s ‘lost 19 boxes’ is to remind everyone that discovery is a lifecycle that needs to be thought through and tracked from start to end. So do you know where all of your documents from closed cases are?
Greg Buckles wants your feedback, questions or project inquiries at [email protected]eDJGroupInc.com. Contact him directly for a free 15 minute ‘Good Karma’ call. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.
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