When Data Preservation Isn't Free: Andy Hansell on Proportionality, Legacy Data, and the AI Arms Race

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Host: Mike Hamilton, VP, Marketing - Exterro

Guest: Andrew Hansell, Director Counsel - Target

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Preservation law was built for a world of paper, where keeping records meant simply not throwing them away. Data does not work that way, and the gap between those two realities is where cost, risk, and disputes now live.

In this episode of Data Xposure, brought to you by Exterro, Andy Hansell, Director Counsel at Target, draws on a career spanning law firm practice, eDiscovery consulting, and in-house leadership. That path gave him fluency in both sides of a discovery dispute: the incentive to drive costs up, and the incentive to keep them down. He explains why preserving legacy systems is far from free, how proportionality applies to preservation and not only to collection and review, and why courts and opposing counsel often assume a database can answer questions it was never built to ask.

Andy also offers a contrarian view of AI in litigation. Rather than a defense-side cost saver, he sees an arms race, plaintiffs have more incentive to adopt AI than defendants do, and the result may be more lawsuits, more sharply targeted. Listeners will come away with a practical view of how to defend preservation decisions, communicate data realities to outside counsel, and think clearly about what AI actually changes.

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Episode Transcript

Mike Hamilton (00:08)

Welcome to Data Xposure, the podcast for data risk leaders. Brought to you by Exterro, I'm Mike Hamilton. Preservation law was written for a world of paper. Back then, keeping records just meant not throwing them away. Data doesn't work like that. And the gap between those two ideas is where a surprising amount of cost, risk, and litigation now lives. My guest today has seen that gap from every seat at the table. Andy Hansell has practiced at a law firm, consulted on eDiscovery, and now works in-house at Target as director counsel. That path gave him a rare kind of fluency. He understands the side of a discovery fight that wants the costs to go up and the side that needs them to come down. We're going to get into why preserving legacy data is anything but free, why a database often can't answer the question everyone assumes it can, and Andy's contrarian read on AI and litigation, which he sees less as a defense-side cost saver and more as an arms race.

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Mike Hamilton (01:08)

Hello Andy. Welcome to Data Xposure; it's a pleasure to have you on today's podcast.

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Andy Hansell (01:13)

It's a pleasure to be here.

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Mike Hamilton (01:14)

And before we get into the meat of our conversation, a quick disclaimer. The views and opinions expressed by Andy on this podcast are his own and do not necessarily reflect the official policy or position of his employer, its affiliates, or Exterro. It wouldn't be a Data Xposure podcast without a disclaimer, right, Andy?

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Andy Hansell (01:35)

Yeah.

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Mike Hamilton (01:37)

It's almost as

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Andy Hansell (01:38)

Yeah.

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Mike Hamilton (01:39)

it goes like with peanut butter and jelly. A disclaimer or an answer from an attorney that is "it depends."

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Andy Hansell (01:46)

"It depends" is the starting point.

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Mike Hamilton (01:50)

Exactly, exactly. Andy, you've sat everywhere in every position possible, really, when it comes to litigation. You've been in big firm practice, you've done some e-discovery consulting. Now you're on the other side of the fence in-house at Target. What can you see from the inside that you could never see from the outside?

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Andy Hansell (02:12)

Yeah, I think the main part here is it's way more detective work and more persuasion than legal analysis than it probably is readily apparent from the outside. From the detective work side, it is trying to figure out where your data sources are and who's in charge of them and all that. And if I'm doing my job well, outside counsel isn't aware of all the things that are going on inside to try and figure out these things, but being on the inside, I'm the person trying to figure out, not only what systems are being used within a particular dispute or a particular transaction and then who's in charge of those.

And then persuasion is also a piece of it as well because I don't have direct reporting lines with the stakeholders of those systems usually. They're typically in our IT organization, I'm in the legal organization. And other than vague threats and things like that, I don't have a whole lot to make them do what I want them to do. It really is much more being persistent and asking nicely and explaining why it's important for them to do what we do and what we're gonna do with that information.

Again, I just—having come in from the outside, you see that sometimes when you're outside counsel, but particularly in larger orgs, generally the outside counsel just has their one contact within house, whether that's a paralegal or an attorney, and they're not aware of all the things that are happening on the inside.

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Mike Hamilton (03:11)

Mm-hmm. Well, it's really going back to that comparison of seeing how the sausage is made. It's not the most pleasant process, but as a consumer or someone that's at a law firm, you're kind of seeing a more refined product or refined output. I want to follow up on something you said. You referenced you have to do a lot of persuasion. Are you in a lot of these conversations with these IT stakeholders, or do you have an intermediary, like an e-discovery manager or a legal ops person that you collaborate with?

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Mike Hamilton (03:31)

Mm-hmm. Well, it's really unique—that unique skill set, honestly. I went to law school—I remember I went to law school because I hated science and I couldn't do math. And so having someone that has both sides of their brain working is unique and it's a huge advantage. I want to go back to when you're advising companies on eDiscovery when you're outside the organization. What did you think the hard part was? And I think we've touched on this a little bit, but what turned out to be the hard part once you were the client living it?

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Andy Hansell (04:02)

In my org specifically, I'm a team of one. And so I'm doing everything from the legal explanations down to the technical as far as trying to figure out who's there. It can vary. You see a lot of different structures, particularly when you're outside orgs with that as well.

Some people have a legal ops function that includes e-discovery and may even have a couple of tech people who are legal specialists; typically that's companies that have bigger litigation profiles and maybe are in a very regulated industry or something like that where they're doing these polls pretty consistently and things like that. And then you'll see other organizations where there's nothing there other than, "This is the IT guy. You should talk to him about where to find this stuff." So it can really kind of be a sliding scale. But for me, I'm the lawyer who knows technical things and then I'm the person on the technical side who knows the law part, but it's kind of doing a little bit of both.

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Andy Hansell (05:22)

Yeah, yeah. I think when you're outside, the hard part is obviously fighting with opposing counsel and working to meet court deadlines and maybe arguing in front of the court. On the inside, as mentioned, you have much more of trying to shape your organization in that.

The analogy I use—I think people sometimes often say fire codes are written because of catastrophe or written in blood—and I think e-discovery programs are the same way in that they are written in sanctions motions and that as well. A lot of times you can't get an organization to move forward in terms of planning their e-discovery or putting those systems in place until there's been a bad outcome.

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I view my job as trying to convince the organization before that happens: "Let's not put ourselves in a situation where we're gonna have a bad outcome." And trying to get the business to invest in, whether that's e-discovery software, whether that's legal hold profiles and protocols, contemplating how we're gonna get information out of systems maybe before we bring them into the organization, are all things that as an outside lawyer, you don't have to deal with.

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Mike Hamilton (06:19)

I would agree with that. And do you agree with the—I mean, I saw a stat, I can't remember where it was, but I think sixty to seventy percent of legal departments had no real handle on what's actually coming in the door; it's coming in from everywhere. And you talked about processes and having these defined workflows. Is that a best practice that you've implemented before that helps with that intake?

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Andy Hansell (06:45)

I think trying to figure out what data systems are is definitely something that it's an eighty-twenty situation where most of your information is gonna be in a couple of places that are used daily by your workers and that. And then you may have some other kind of frequent flyers on the e-discovery side where you have disputes that touch on them enough and that those are the ones where you want to spend time planning, maybe even investing in a middleware or other software to potentially help you put them on hold or pull information from them.

And then you have your one-off sort of—the "just one case affects this particular data source" or this particular thing. And though those can be, from an intellectual side, interesting because it can be challenging to try to figure out, "Well, how are we going to get information out of this?" because no one's ever thought about it before and what's it going look like when it comes out and all that sort of situation.

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I think trying to spend your planning time focused on your low-hanging fruit and your biggest basket of information and data is probably what you do. But then you need to have a plan in place for when the unexpected comes up as well.

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Mike Hamilton (07:43)

Let's move on and talk about when there's a dispute and what both sides, plaintiff and defendant, are really trying to get out of the discovery process. We noted this when we talked in our prep call. One side usually wants it to be cheap, and one side quietly wants it to be expensive. I think you've been on both sides. Can you explain to some of those people that are maybe not as familiar with the gamesmanship that goes on from an attorney's point of view, about what this looks like?

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Andy Hansell (08:14)

Yeah, I mean there's kind of two big pillars on the corporate defense side. First is whether you're going to litigate a case and how far you're gonna push it isn't just a function of the merits. It's often a function of what it's gonna cost to defend that case. And that's kind of your starting point as far as like, "Well, what am I gonna have to spend to defend this lawsuit?" There's the old notion of if you've gotten a trial, you've already lost, right? Like it doesn't even matter if you win trial ultimately because you're gonna just spend so much money defending it as well. And that's kind of the budget you're working with.

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And then you're also working with a situation typically with corporations where it's an asymmetric discovery dispute. It's typically an individual or a small class of plaintiffs who don't have a whole lot of data and who don't have a whole lot of things to look through, going up against a larger organization that does have a large amount of data to look through in that as well. And so you have the potential to have large discovery expenses to search, collect, review, and produce that information.

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And so from a plaintiff's perspective, your goal is to make that discovery budget expand, to expand that cost of defense budget overall, so that you're more inclined to write me a check for $10,000 than to write a check to an e-discovery provider for $100,000 or something like that. So the plaintiffs are just going to constantly be trying to drive discovery. No amount of discovery is enough. "We need all this information. We need everything broader," whatever.

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And then from the defense side, you're trying to minimize your costs of discovery as much as you can. Be cheap and efficient in how you're gathering information. Ideally, you have a good program in place that allows you to cull data when you're collecting it so that you're not paying to process and host large quantities of data. And then once you're loading it into platforms, you're using technical things such as AI or TAR to minimize the number of documents that are actually getting reviewed so that you're driving that defense cost down.

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The plaintiff's goal is to blow that budget up so that you'd rather settle. The defense side is: "Can I shrink that budget as much as I can so that I can threaten to continue to litigate because the cost to me to continue isn't prohibitive?"

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Mike Hamilton (10:21)

One other thing that I wanted to follow up with you about regarding defending and using outside counsel. You've been on both sides of the coin—that one side, outside counsel, wants—I mean they're a business, they need to make money. In theory, they want to bill more hours, right? While you're in-house counsel, you want to minimize those costs. Are you seeing the economics of that relationship change now with the use of AI? And we've heard some GCs pushing their law firms to leverage AI to lower client fees. What are your thoughts about that?

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Andy Hansell (11:01)

Yeah, I think you're going to see that. In the short term, if I'm outside counsel, it's in my interest to bill more time, right? 'Cause that's how I do that. But long term with clients, I want to be able to show that I'm effectively resolving cases with the minimal amount of time to do that and that as well. AI is frankly an arms race with the other side as well, but from a defense side—yes, these tools need to be—I want counsel to use these tools.

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I think there are two ways you're seeing them very early on. First, it's letting companies pull work in-house because if I only have so many heads in-house, I can only do so many things. AI is helping me reduce administrative tasks and time that's spent doing that, freeing my in-house resources to do higher-end work, maybe doing actual legal work beyond essentially just doing project management where you're just trying to make sure your outside counsel is staying on task and that as well.

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And then from the outside perspective, obviously if you can leverage these tools to reduce the amount of time it takes to draft a motion, to do research, to develop a fact pattern and review documents, I'm going to be very interested in reducing my overall spend with outside counsel. And I think these tools are gonna help do that and already are, frankly.

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Mike Hamilton (12:11)

Yeah, and within that dynamic, how much are you looking at reporting? I remember ten, twelve years ago, one attorney told me it just costs what it costs to defend. And so how much are you looking at that reporting and how much are you following up with outside counsel to monitor that ROI and if they're giving you that business value that you just outlined?

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Andy Hansell (12:37)

I think you're seeing in a lot of ways that drive is coming from the business side of my business and other businesses as well, saying "something costs what it costs" in terms of litigation defense isn't an answer that a CFO or a CEO wants to hear anymore from a GC or from a legal department. They expect you to be driving value around that. I think you'll see the rise of legal ops functions within orgs because of that, doing much more benchmarking, dashboarding, scorekeeping around what we are actually spending on this.

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And you're seeing it on the law firm side too. You're seeing legal ops within law firms even to help manage time and manage efforts. You're seeing demands for flat fees or AFAs or built-to-caps or things like that, where as a client you know what you're in for at a max on a matter. And law firms, particularly the large ones, are investing a lot of money because they realize they do enough cases, they do enough defense that they are in a position where they know the amount of time it should take to do something within a range.

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And that allows them, when they're put in these situations where they have to bid on work, they know their own poker hand. They know how many hours it's probably gonna take and how much it's gonna cost them internally to do something. And so they can make their bid to get that work more accurate and are okay about being held to caps. You're gonna see much more emphasis on AFA situations or alternative fee agreements where law firms are capped as to what they can 

charge the client for a particular set of services.

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Mike Hamilton (14:05)

Well, I want to go to—I think a passion area of yours, Andy, we talked about in the prep call, and it's around preservation. And you made the case that this is the area of e-discovery that irks you most. Talk to me—talk to me like I'm your therapist. What does the judicial system, the judges, fundamentally get wrong about preserving data?

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Andy Hansell (14:29)

Yeah, this is a pet peeve of mine. It's something where I don't think a lot of attention is paid to this because it's a district-level decision. Preservation is happening before lawsuits, sometimes even before they start as well. But preservation law for me is really kind of caught in a paper world still, where courts view preserving information around lawsuits in my mind usually as banker boxes of documents somewhere. And all that they're seeing is "don't throw these away," right? Where's the cost in that? And where's the problem in doing that? And where's the problem in telling you to preserve everything versus a smaller set of information or anything like that?

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The reality, of course, is that in an electronic world with data, it's now completely different. And the biggest place you see this is that litigation often reaches back years into past transactions or past softwares that the business used because of just the nature of the fact that people are suing after something has happened and the look-back period of that as well.

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And so preservation in a data context often means trying to keep data alive that may be on a system that the business has stopped using, and frankly the software that the data lives on may no longer be supported by the business or even the manufacturer of the software. You may not even be able to keep it up to date; it might be sitting on hardware that literally is about to physically fail. And trying to convince the business that we need to keep this stuff online, up to date on new hardware, for the sole purpose of meeting a preservation obligation is not only expensive, it just doesn't make a lot of sense, and it's definitely not a zero-cost ask. There's actual money and expense associated with trying to preserve this information.

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Mike Hamilton (16:14)

Let's talk about proportionality, and I would love for you to explain that for our audience, but that usually shows up as a fight about what to collect and review. Should that apply to preservation too? And based on what I've seen—I could be wrong—why don't more parties make that argument?

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Andy Hansell (16:35)

Yeah, and I think that is the rule—that you have to argue that you didn't have to preserve something or the scope of your preservation, and that is proportionality. I think there's a couple of things that happen here and why you don't see these arguments made.

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One is what I brushed on a little bit before—the timing can be a core problem in that your decisions around what you're preserving and what you're going to keep are made very early in a dispute. If there's some sort of tragic accident or something like that, you may be doing it before you even have a demand letter. In a lot of disputes, you're deciding at that demand letter stage what you're gonna hang on to. And so there's no court to even run to to try and get a ruling that says it's okay if I don't keep all this stuff. And so there's literally no one to ask or no one to decide what you have to keep and what you don't that's a third party. And so you can't get that sort of protection or make that sort of argument.

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And then even once the lawsuit is filed, first of all, judges just hate discovery, right? They don't want to be ruling on discovery motions; they don't want to be ruling on protective order motions and that as well. And it's kind of a big ask to be going in and saying, "Your Honor, I'd like a sheet of paper that says I don't have to keep this other data." Sometimes the relevance seems to be from the fact that you're even bringing it up—that this is potentially there.

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And of course, there's also the downside of trying to do that and getting an adverse ruling. And now where maybe if you didn't go to the court, you could have just said, "Well, we made an internal decision not to keep this information," or "We looked at it and we decided that we weren't going to spend the money to keep this here." Well, if you risk going to the court to get an order that says, "I don't have to preserve this anymore," you can end up with an order that says the opposite—that says, "Now you do have to preserve this." And you don't have the option anymore of making your own decision about what you keep. Now you've kind of put your cards on the table and the other side knows that you have these systems and now knows that you're gonna be under an obligation to preserve them.

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Mike Hamilton (18:34)

Can we decipher—because I think a lot of people, I know I used to equate preservation with collection. And they can be synonymous, but they can be different. As you're moving throughout a case, you're preserving data, you're collecting some of that as those parameters of what's actually responsive or relevant to parties' requests to the case. Could you go about then saying, "Okay, I'm gonna take some of this data that I haven't collected off a legal hold," and then this data is then going to apply to my document retention policies? How do you go about making that judgment call, or do you not make that judgment call?

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Andy Hansell (19:11)

Your preservation obligation is broader than your collection obligation usually. Preservation is—and again, because of this perception that it doesn't really cost anything and all we're doing is saying "don't throw things away"—those decisions typically have to be made before there's any sort of ESI protocol or discussion about search terms or anything like that. You need to keep the broadest canvas for that because obviously the court may not take my word for it as the producing party of what I've decided is relevant.

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The other side is gonna point out, and rightly so, that I have incentive to try and narrow what is relevant. And the other side, of course, as we discussed earlier, has their own incentives to try and broaden what's relevant and expand that as much as possible. The issue is, from a preservation side, it's such a low standard to trip, right? It's just the potential for there to be relevant evidence within a data set that would trigger your obligation to preserve it. You may not have an obligation to collect and look at it, but you do have an obligation to make sure it doesn't go away, which, as I mentioned earlier, the problem is there can be a lot of cost associated just with making sure it doesn't go away.

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Mike Hamilton (20:17)

I want you to play FRCP rule writer. If you could rewrite one of these rules to create more clarity, create maybe more efficiency, what would that rule be from you?

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Andy Hansell (20:33)

Where we see the most expense and most problem both in my private practice and in-house is around these legacy systems—these systems that the business isn't using anymore currently that are literally just being kept around because of the threat of litigation and the need to potentially pull information off. And I think if there were some safe harbor provisions around legacy data systems—that I'm not required to take extraordinary means to keep these available because there is no business purpose in doing so. If there were ways to potentially cap how much I had to spend or even fee splitting if there are expenses necessary to keep them that way.

And if there were a prevention—like I said, a safe harbor around: "Hey, if I just unplug these servers and put them in a corner, and then when I plug them back in, they don't work anymore," well, that's not me trying to make them not work; that's not me taking anything around that. But at the same time, I'm not then required to transfer all this data to cloud storage or transfer it to new hardware and put new software on it, which sometimes I can tell you from prior cases is not without risk either. Sometimes that transfer or the updating of the system software may also result inadvertently in data loss. And then you're in the position of: "Well, what did I do?" If I didn't do that, potentially the data just becomes completely inoperable or inaccessible.

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Mike Hamilton (21:54)

Mm-hmm. Well, let's move on. Hopefully that was therapeutic for you, talking about preservation law. But let's move on to the one topic that I think everyone in the legal industry is talking about right now. Everyone's got an opinion on it. It's kind of one of those controversial things, almost like politics. It's like there's no one in the middle; people are on the fringes. Everyone frames AI in litigation as a potential way to cut costs. When we were talking, you had a contrarian take on this. Do you mind sharing that with the audience?

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Andy Hansell (22:25)

I think a lot of corporations are jumping on AI on the basis that "this is gonna save us a ton of money," and something when you're like, "I don't think so," it doesn't necessarily make you super popular because of that. I really view AI in litigation particularly as an arms race. If anything, plaintiffs may adopt this stuff faster than defendants, and as a result you're going to see more and better-drafted—whether it's demand letters, complaints, motion practice, etc.

You might have claims that are even developed based off of plaintiffs using AI to look at your website and scour it for potential claims against your company, and as a result, we really need to implement these AI tools because it's going to be necessary in order for us to compete against what's gonna be out there. To me, it's not a correct viewpoint to think that somehow the defendants or the corporate clients are gonna be the only ones implementing AI tools. Everyone's going to be trying to do this. And frankly, the plaintiffs probably have more incentive than defendants to do it.

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Mike Hamilton (23:22)

Mm-hmm. And there's gotta be a variety of regulations out there where there can be serial litigation based on some of these regulations where plaintiff's attorneys are going out and looking online and seeing where there's violations and then doing serial litigation based upon that. And the follow-up that I would have for you on that is around how things are gonna change. There may be more lawsuits, not fewer—maybe even better-targeted ones. What does that actually change for how in-house legal teams staff and prepare?

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Andy Hansell (23:57)

First of all, your in-house efficiency has to increase because you're gonna have more claims you're dealing with and better-drafted claims and maybe more meritorious claims, or at least drafted to be not easily dismissed. Plaintiffs have every incentive to drive this because they're usually working on contingency—every hour they spend developing or litigating claims is diluting their profit margins. If they can get these tools in and get either more claims out or get better claims out with less time on their part, they're going to do it.

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When those come in, you need to be more efficient with how you're handling them. Frankly, you may have so many that you can't afford to push them all to outside counsel—certain ones you're gonna have to try and deal with internally, and you're gonna need these tools to help you do that because you can't just say, "We're gonna throw more outside counsel at these matters."

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And the other piece I mentioned a little bit before, too—I think you're gonna see more because these claims are going to be more commoditized potentially, or even more formulaic in terms of how they're put together. The response can potentially be that way as well. And that lends itself to more alternative fee agreements and flat fees with law firms. You may try to drive those agreements to make sure that—hey, we're seeing a lot of demand letters in X area; I want a flat fee for doing a response to those demand letters, or I want a flat fee for dealing with those claims because we think they can be resolved early on, typically, most of the time.

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Mike Hamilton (25:16)

For you personally, where do you find AI within legal work the most exciting or the most opportunity? And where do you see AI coming where you're like, "Hold on, we need to pump the brakes a little bit here"?

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Andy Hansell (25:33)

Essentially like all automations, I think in the past have always been doing tasks that people don't like doing are great opportunities because the AI typically can be pretty good at it. It doesn't get upset, it doesn't get bored, it doesn't do all those things. And the best way to get people to adopt things often is if it is going to improve their daily life. And so if you can get AI to do tasks that your legal teams don't want to do anyway because they're rote, they're repetitive—things like setting up matters, things like pulling contact information and just the basic summary of what's in a complaint.

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AI is super good at reading, understanding, and summarizing; and within a discovery context, also being able to ingest data, particularly in an investigation context where you may not even know what you're looking for. AI is very good at summarizing what's in there. There's a variety of tools right now that you can use to kind of do Google-like queries on your data set and be like, "Hey, is there any information in this?" or "Show me all the times that Mike and Andy met in the past year."

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And AI will not only find the contract or the calendar invites between you and me, they'll find mentions in emails where maybe I mentioned, "Hey, Mike and I met the other day," where in the past, human reviewers—that would have just been beyond their ability. And so building timelines, fact patterns, and developing that information, it's great at.

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I think the areas where it definitely struggles and where you won't need it are things that are more judgment-calling. The way I would put this the other day was there's the Professor Malcolm in Jurassic Park who talks about how you were so focused on if you could do something, you didn't analyze if you should do it. And I think AI is very focused on if it can do things and not if it should. Should we make this argument because does that open us up to things? Hey, if we demand this from the other side, are they gonna ask for something else from us? From a transactional side, you can have a playbook and AI can execute those contract terms, but the strategy behind like, "Well, if we let them have a win here and get this, we'll 

maybe be able to get this later"—that piece isn't there.

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And then I think obviously the headline-grabbing one from a litigation side that you worry about is hallucinations in court-filed documents. Letting it generate court work product or actual briefs—there's got to be a lot of human oversight there. There's gotta be a lot of review and checking. Going full automation with that piece is something I don't think anyone should be comfortable with. And like I mentioned before, the particular arguments that you're making in a brief—again, just because you can make that argument, maybe we don't wanna make that argument here for a particular reason.

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Mike Hamilton (27:06)

Yeah. Really good points there. I mean points that I haven't heard before on this podcast and the first Jeff Goldblum drop on this podcast as well, which is great. And one thing I've noticed with AI, and I think this touches on what you were referencing, is when you use AI, it wants to please you. Any sort of argument that you're making, any sort of inclination it can kind of grasp onto, it may just run with that and validate it, even though it could be wrong to your point. We're getting to the end of our conversation here today. I want to ask you two closing questions. For an in-house lawyer that maybe just got e-discovery dumped on their plate—you come in and your boss says, "Well, half your job is gonna be managing the e-discovery process now"—what advice would you give to that lawyer that's just getting started or just getting their feet wet within e-discovery?

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Andy Hansell (28:58)

You start with: just don't panic. As someone who in my current position came in and was the first person asked to do this, you're not gonna be able to solve everything immediately; you need to just eat the elephant one bite at a time. Just go out there and find your biggest problem, work on solving that, and go from there—your largest data systems, your biggest piece around that.

I think a good way to do this is, on some of your initial disputes, make sure you're interviewing custodians to find out where are they actually keeping data. What are they actually doing with it? Because sometimes lawyers can be very bubbled as to how they use systems—how they use email, how they use SharePoint, how they use Slack or Teams—and they assume everyone else uses it in the same way. And that's never true.

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And the other thing you can find that's always disturbing is what I would call "shadow IT" where people and other teams are using perhaps non-sanctioned platforms or non-sanctioned practices in order to keep data. And that's important to find out about, both because you gotta figure out a solution for how you're going to capture that information, and longer term you might want to work with your own tech organization to be like, "Hey, we need to change how we're hanging on to data or what systems we're using because people aren't happy and they're going 

out and using things on their own."

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And the most critical things that you need to look at are systems with retention policies and auto-deletes. You need to have the ability to pull stuff out and prevent that from being deleted, whether that's a legal hold software or another piece there. It's specifically in the rule: the failure to suspend auto-delete programs is specifically called out as something that you can get in trouble for. Working on making sure that that's not happening, or that you have a mechanism to pause retention deletion or roll-offs, is something that you're gonna want to prioritize.

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Mike Hamilton (30:42)

And then the final question—and you don't have to answer this if you don't have something—what's something about e-discovery you believe that most of your peers don't?

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Andy Hansell (30:51)

I don't know if others don't believe this or not, but one of the things that I believe is very true about e-discovery across all the streets of—and it doesn't matter whether a case has a thousand documents or ten million documents—the case is gonna turn on a small handful of documents. On a tiny case that could be ten; in a million-document case, though, it's still not going to be more than 40 or 50. From a practical standpoint, a jury, a judge, or whatever is never going to look at broader than that.

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You're going to need your case to be in those things. And so your real goal in e-discovery is always finding those key documents as fast and as early in the process as possible. And that's because what those documents say—are they bad for us? Are they good for us?—those are gonna drive the rest of your decision making, whether we're gonna try and settle this case, we're gonna litigate this case, we're gonna do all that.

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And your process should be designed to surface those first. And then everything else—all the other documents—is just a compliance exercise, really. It is not about strategy; it is about literally just being able to stand up in front of a court and tell them, "Yeah, look, we've produced all this information. I don't know what they're complaining about, Your Honor." That's the situation. It's kind of the simple thing of it being two tasks: one is important and critical to the outcome of the litigation, the other is not; and you just want to do it as cheaply and as effectively as possible. And that's kind of how I've operated.

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Mike Hamilton (32:19)

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Well, Andy Hansell, thank you so much for coming on the podcast Data Xposure. It was a pleasure having you here today.

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Andy Hansell (32:25)

Well, it's great to talk to you, too, Mike.

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Mike Hamilton (32:28)

This was exactly the kind of clear-eyed, no-easy-answers conversation this show is for. If there's one thing I'm taking away, it's that the hardest problems in e-discovery aren't really about the technology. They're about telling the truth about your data and making decisions you can defend when the pressure is on.

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Thanks for listening to Data Xposure, brought to you by Exterro. If this one was useful, follow the show on Spotify or Apple Podcasts and send it to someone on your legal or data team who's wrestling with the same questions. You'll find every episode at exterro.com/resources/inside-data-Xposure. I'm Mike Hamilton. We'll see you next time.

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