Preservation

A Study in Complexity

Preservation for electronic discovery has become a complicated, multi-faceted, steadily-changing concept in recent years. Starting with the nebulous determination of when the duty to preserve arises, then continuing into the litigation hold process (often equated to the herding of cats) and the staggering volumes of material which may need to be preserved in multiple global locations, platforms and formats, the task of preservation is an enormous challenge for the modern litigator. Seeking a foundation in reasonableness, wrestling with the scope of preservation is often an exercise in finding an acceptable balance between offsetting the risks of spoliation and sanctions related to destruction of evidence, against allowing the business client to continue to operate its business in a somewhat normal fashion.

The Importance of Meet and Confer

Certain suggested standards and guidelines have been emerging to provide checklists for those preparing (and preserving) to respond to electronic requests for production. However, probably the most important and helpful development which has evolved in preservation is the mandate in FRCP and other state rules for the parties to meet and confer early in the discovery process to attempt to reach agreement on important issues of scope and responsibilities related to discovery. As we continue, the "old school" adversarial approach to discovery, and its hide-the-ball tactics, is rapidly giving way to a more collaborative common search for reasonableness by counsel and technical resources for both sides of disputes, when it is motivated by avoidance of the staggering potential costs of out-of-control electronic discovery. All of this search for common ground, and fiscal reasonableness for the clients, begins with how good a job the parties do in fleshing out the approach to preservation and the definitions of what may be considered relevant material.

Understanding the Territory

The gargantuan scope and complexity of electronic discovery, and meeting the client's duty to preserve relevant evidence, has dictated some new learning experiences for both the legal and the IT communities. It has been noted by one of the pioneers in the burgeoning ED industry that "the reality of electronic discovery is it starts off as the responsibility of those who don't understand the technology, and ends up the responsibility of those who don't understand the law." Expansion of the understanding and cooperation of both the legal and technological disciplines is a critical component of effective preservation, but ultimately, it is the legal counsel protecting the client's interests who must learn the most about the client's IT architecture, policies, personnel and culture. Developing a successful preservation plan will be nearly impossible if legal counsel is not fully aware of all the places in the client's electronic world where relevant material may be stashed. Document retention and destruction policies - and practices - must be defined and under control. The attention and buy-in of key players, underscored by communications from senior management, must be obtained to assure compliance with legal hold orders and the construction of good preservation fences around relevant material.

Get the Help you Need

Assessment of the overall preservation task will, by necessity, involve identification of those groups of potentially relevant materials which will be most critical or most difficult to preserve or collect, and those will be driven by the issues and priorities of the individual case. Some of those thorny areas might dictate an immediate implementation of hard drive mirror imaging for key players, by a forensic expert. Some may involve isolation of access from certain segments of the client's systems until collection can occur. Some may require assistance from the IT department to suspend some operations, or re-route certain tasks to different servers. Whatever these steps are, they will usually be technical, and they will generally require assistance from someone knowledgeable about those technical matters. Don't scrimp on getting the technical assistance you need to offset these key data challenges. Morgan Stanley learned the hard way that failure to engage an expert who understood everything about backup tapes, could be an extremely costly mistake. Coleman (Parent) Holdings v. Morgan Stanley, 2005 WL 679071 (Fla. 15th Cir. Mar. 1, 2005).

Get Ready for the Next Step - Collection

So, now you've done everything we've talked about in this Preservation section, and built sturdy electronic preservation fences, maintained by conscientious employees, around all the valuable data and documents which might be considered potentially relevant material in your case. You have left no laptop or thumb drive unguarded or unnoticed by your preservation program. You've met with opposing counsel, and reached agreement on date ranges, custodians, and topics for production which are all well within the scope of the litigation hold and other preservation fences you have put in place.

Sounds like we should be about ready to take a break, right? Wrong. Assuming all those fences are still holding, and our preserved data is still intact, it is time to start carefully gathering in the potentially relevant material which will continue the ongoing process of screening until a small percentage of it eventually becomes evidence. It is time to get underway with the next step in this Electronic Discovery Reference Model: Collection. The node which follows will pick up from here, and take you into still more uncharted waters - the process of creating and exporting copies of our potentially relevant electronic data and documents - hopefully, without messing them up.

More Categories

Legal Requirements

There exists a variety of applicable rules, regulations and case law regarding the duty to preserve electronically stored information.

Preservation Letters

It is becoming commonplace for a party who seeks information in a dispute to issue a preservation letter to the adverse party that it will eventually be seeking information from.

Considerations Before the Duty to Preserve Arises

Because the duty to preserve is one that hinges on the timing of its attachment, it is of vital importance to be proactive in preparing an environment in which compliant preservation will be possible.

Implementation of Preservation

When considering the scope of the preservation obligation, it should be noted that not all cases are created equal.

Additional Materials

A list of additional resources on this topic.

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