Late last month in Mirmina v. Genpact, the Honorable Sarah Merriam of the United States District Court for the District of Connecticut properly confirmed that it remains permissible to manually preserve and collect discoverable email. Her opinion was concise and spot-on, swatting away the plaintiff-movant’s speculative “concern” that defendant must have “withheld communications” that were responsive to the case’s discovery protocols. Citing Zubulake V, Magistrate Judge Merriam accepted defendant’s detailed affirmation that in-house counsel appropriately coordinated and supervised the manual search for reponsive email by defendant’s ESI custodians, and she therefore denied plaintiff’s motion to compel.
What’s remarkable about this ruling is that a singularly unremarkable point has somehow become remarkable.
We’ve come a long way since 2004, when Judge Shira Scheindlin took us to school on the preservation duties of parties and their counsel. But nowhere in her Zubulake opinions did Judge Scheindlin mention, much less mandate, the use of automated preservation – indeed, her focus in Zubulake V was on effective communication between humans, not machines:
Commenting on the importance of speaking clearly and listening closely, Phillip Roth memorably quipped, “The English language is a form of communication! . . . Words aren’t only bombs and bullets — no, they’re little gifts, containing meanings!” What is true in love is equally true at law: Lawyers and their clients need to communicate clearly and effectively with one another to ensure that litigation proceeds efficiently. When communication between counsel and client breaks down, conversation becomes “just crossfire,” and there are usually casualties.
So, where do things stand now, more than a decade after Zubulake V, on automation in legal hold processes? Zapproved’s 2017 Legal Hold and Data Preservation Benchmark Report offers some interesting metrics:
- 93% of respondents manage all or part of collection in-house;
- Less than half (44%) rely on custodians for self-collection;
- More than half (57%) use automated solutions for legal holds, up from 34% in 2013 and 46% in 2016;
- Preservation in place is growing – only 37% of respondents collect data for preservation, down from 42% in 2015; and
- Employee training on legal hold responsibilities has dropped, from 75% of respondents in 2015 down to 52% in 2017.
I get it – there are of course compelling reasons to leverage technology in legal hold processes. Employees have fewer distractions from their work duties, large amounts of data can be preserved in a more uniform manner, and dashboard metrics and reporting are a welcome relief for those poor in-house souls who are accountable for legal hold compliance.
But the same human factors that for some cast doubt upon manual custodian preservation also apply to the ordinary course of business data environment. Employees every day put data in odd places, use uncontrolled repositories, and generally handle business data in ways that remain beyond the ken of automated legal hold technologies. There is still no “magic bullet” technology tool that can fully automate preservation without human input – and noone knows their data like the custodians themselves. This is not a curmudgeon’s point, but instead, a pragmatic observation on the stubborn realities of information management in today’s organizations.
So, as per usual, a hybrid approach remains prudent. Automate what makes sense to automate, and keep manual what is best done manually. And as Mirmina v. Genpact reminds us, manual preservation by custodians is not per se noncompliant. Legal hold automation is merely a means to an end – not an end in itself.