This one part,
Of course instead of fighting back and just dropping their records which they could do tomorrow (to the extent there is no affirmative law that requires keeping), all we see are these big co's 'begging' the gov if they can publish subpoena statistics. Bunch of sheep and fishy practices.
touches on what can and cannot be deleted as a matter of routine. It is not simple, and, if your are the General Counsel, then advising your firm to keep everything looks safer than doing any deletion even if deletion were to be done by way of some set of instructions that are airtight. The (2003) Zubulake v. UBS Warburg case is the precedential one. In one of the several rulings, there is this passage: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a "litigation hold" to ensure the preservation of relevant documents. That has created a focus on the "reasonable anticipation of litigation" phrase such that most large firms, to my admittedly incomplete knowledge, have concluded that as they will be sued over very nearly anything hence they should keep very nearly everything lest the deletion of data, even if routine and commonsensical, be found by some Court to be willful spoilation of evidence that the firm should have expected would be crucial to some plaintiff's claim at some future date. Fast forward to 2013, and we have the multi-billion-dollar "e-Discovery" industry. In short, this is the United States -- the assignment of liability is what the government does and the plaintiff's bar has the government's ear. And balls. --dan