Lawyers engaged in civil litigation on smaller matters face uncertainty regarding the extent to which electronically stored information (ESI) must be preserved. They are justifiably worried about the costs associated with identifying, preserving, collecting, reviewing and producing this information. This uncertainty, and a lack of understanding of the technical issues involved, forces many lawyers to choose one of two extremes: overpreservation to prevent sanctions or an abdication of preservation responsibilities to vendors or the clients themselves.
Add to this circumstance a recent opinion by U.S. Magistrate Judge James Francis in Orbit One Communications Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010). In Orbit One, the court questioned the usefulness of the principal of proportionality, saying that the reasonableness and proportionality standard “may prove too amorphous to provide much comfort to a party deciding what files it may delete or backup tapes it may recycle. Until a more precise definition is created by rule, a party is well-advised to ‘retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches.’ ” Id. at *6 (citing Zubulake v. UBS Warburg LLP, 220 F.R.D. 212 (S.D.N.Y. 2003).
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