True necessity of Records? [was: CryptoSeal]

dan at geer.org dan at geer.org
Wed Oct 23 03:58:43 PDT 2013


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




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