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« LG Seeks Ban on BMW, Audi Sales in Korea | Main | Federal Circuit Upholds Sanctions And Attorneys' Fees Award For Failure to Conduct Reasonable Pre-Suit Investigation »

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Lee Thomason

The Model Order manages reality, rather than force efficiency. Many excesses in e-discovery result from lousy retention policies, which make it laborious to find and retrieve relevant docs. Poorly conceived and poorly understood retention protocols are the cause of over-production (bad for the requester) and excessive expense for production (bad for the disclosing party, et als).
The Model Order, with its cost-shifting provision, allows lousy retention policies to continue. More effective would be cost-shifting upon a showing that the disclosing parties' files were poorly organized, or unindexed, or full of obsolete data, etc., which caused the cost to increase. This would encourage better crafted and better executed retention and destruction policies. Limiting production and shifting costs arbitrarily denies discovery and does not deter lousy records retention protocols

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