When Kolon Industries Inc. found itself on the wrong side of a $919 million verdict last year, the South Korean-based manufacturer probably started to take inventory on what it might have done differently to have avoided such a fate. While that list could have included any number of entries, somewhere near the top had to be an action item to revamp its information retention policies and litigation hold procedures. Breakdowns in those protocols led to the destruction of nearly 18,000 pages of electronically stored information, or ESI. This, in turn, resulted in a corresponding instruction to the jury in E.I. du Pont de Nemours v. Kolon Industries, 803 F.Supp.2d 469, that Kolon had engaged in wholesale destruction of key evidence. This eventually culminated in a devastating verdict against the manufacturer.
Most companies fortunately will never have to deal with the fallout from a nearly $1 billion verdict. Nevertheless, they still struggle with the same cost and logistics issues associated with information retention that ultimately tripped up Kolon Industries. While there are no quick or easy solutions to these problems, an ever increasing method for effectively dealing with them is through an organizational strategy referred to as defensible deletion. A defensible deletion strategy could allude to many items. But at its core, defensible deletion is a comprehensive approach companies implement to reduce the storage costs and legal risks associated with the retention of ESI. Organizations that have done so have been successful in avoiding court punishment while at the same time eliminating ESI that has little or no business value.
