Electronic discovery pundits have been bashing a recent decision by a federal trial court in Utah in Adams v. Dell, 2009 WL 910801 (No. 1:05-CV-64 D. Utah, March 30, 2009), decrying the opinion as an “outlier” that would have apocalyptic implications were its reasoning adopted by other judges. The case addresses some important issues affecting the way large enterprises manage their electronic information, along the way inciting controversy about when litigation is “reasonably foreseeable” and what kinds of information management policies and practices are protected under the recently enacted Federal Rule of Civil Procedure 37(e). However, a careful analysis of the opinion reveals some fairly unassailable guidance for information management strategy that, rather than being an outlier, is largely prognosticated by prior case law. The opinion is also indicative of how technology trends are likely to affect judicial expectations of corporate parties when it comes to electronic discovery compliance.

Lawyers at odds with the Adams decision staunchly defend the following premise: As long as my client complies with the duty to preserve that arises in connection with a particular litigation, what it does with its electronically stored information (ESI) on a day-to-day basis, when there is no particularized duty to preserve pending, is nobody’s business but its own — not its adversary’s, not the court’s, not anybody’s. While in the abstract this premise may appear reasonable at first blush, it hardly offers practical guidance for information management. The Adams opinion demonstrates why companies should care about their overarching information management policies even without a specific threat giving rise to a related preservation duty.

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