Milberg’s Henry Kelston has offered a rebuttal, “Regress to Neutral: A Response to Robert Owen’s EDD Proposals,” that continues the debate on preservation started by my article, “Reset to Neutral,” in the current issue of Law Technology News magazine. But his piece picks at bits of my proposal, mischaracterizes others, and ignores many of my best points. Nowhere is there a sound justification for the current system.
Summary of my proposals. To recap, I have advocated that we abandon the “reasonable anticipation of litigation” trigger standard for when potential defendants must commence preservation efforts on claims that might be brought against them. That standard, perhaps reasonable and workable at one time, has been overtaken by the volume and complexity of data today, and the system is seriously out of balance. In its place I have proposed four basic rules:
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