Does the BP Oil Spill Make the Case for Automated Legal Holds?

The Gulf Oil Spill disaster has got me to thinking about legal holds, and the place that business workers have in the preservation workflow.  We have seen contention and opinion in several cases that responsibility for ensuring the ‘hold’ of ESI under a preservation obligation belongs more with someone in Legal than with the data custodians.  I think this applies in spades to the current BP situation.

From where I sit (disclosure: I am a native New Orleanian and used to fish, ski and eat seafood in the affected areas), BP has three critical tasks:

  1. Ensure that the cap and relief wells let no more oil into the Gulf
  2. Keep the oil off the beaches and out of the marshland
  3. Pay the fishermen (and other people who are losing pay because of the spill)

Everybody that works at BP that could do anything to help in one of these three tasks should be spending all their time doing them, and should not be burdened with trying to figure out what potentially responsive documents or email or wiki entries they may have in their possession.  BP has other employees (in the legal department?) that are primarily employed to identify, preserve, collect (you see where this is going …) information when a preservation obligation arises.

This also holds true for companies not named BP.  If you are not in the legal department, your primary job probably does not involve preservation or other litigation-related activities.  The best way for the company to remain in business is to have the lawyers do their thing while the business folks keep the company in business.