Defensible deletion is one of those topics lawyers have been hearing about a lot lately. Unfortunately, it’s also a subject that just means headaches for lawyers and needs to die. Just this week, a poorly run deletion policy has had an enormous and possibly devastating affect on a major lawsuit. A Federal judge has hit Samsung with an adverse inference in its high-profile suit against Apple because it failed to stop its automatic email deletion program in time. “In effect, Samsung kept the shredder on long after it should have known about this litigation,” the judge wrote.
It has been a decade since Anderson Consulting went out of business after it was caught indefensibly deleting Enron documents. Since that time, records managers have invested a lot of time and energy in developing “defensible deletion” strategies. Deidre Paknad, Director of Information Lifecycle Governance Solutions at IBM recently wrote about defensible deletion for Forbes. She writes that defensible deletion is, “helping companies curb storage growth and cut costs, increase eDiscovery efficiency, and ensure that regulatory obligations for information are satisfied.” At the eDiscovery Journal, Barry Murphy wonders what to call the process- defensible deletion, active expiration, or defensible disposition. Whatever it’s called, it has no place for litigators or in the context of eDiscovery.
Obviously, organizations with document retention policies should adhere to those policies and dump redundant or obviously unnecessary data. But the idea that organizations should delete records after a period of time to reduce storage costs, and to limit the scope of discovery in litigation is no longer practical. The reality is, if an organization is going to preserve data at all, the most sensible strategy is to save everything. The cost of storage is increasingly negligible, and the scope of discovery is so broad that saving data is more cost effective than deleting data.
In the recent past, emails and documents were likely stored on an Outlook email server or a file server in your backroom IT closet. Today, documents, data, and emails are dispersed so widely- across mobile devices, laptops, and other devices, that deleting the original copy from your local server will never truly eradicate the data. If someone wants to find a particular document, they will find it- on a device, on the web, or in a social media platform.
Judges don’t care that your client deleted the record from its servers. If opposing counsel can dig it up from another source, it will likely be admissible. Defensible deletion made sense a few years ago when IT resources were centralized. But let’s talk about a new strategy- defensible storage. That means keeping a true, forensically complete copy of all of your records. That way, an organization will not be blindsided by a smoking gun email or social media message it mistakenly thought was deleted.