Introduction

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. It is the position of this body that an ounce of prevention is worth a pound of cure in this area. Having a previously established process for preserving potentially relevant information will greatly reduce the cost and effort associated with preservation, particularly for larger companies that are regularly involved in litigation. Pre-preservation steps are essential to fostering a cost-and-disruption-minimizing approach.

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Understanding Records Retention Policies

It is critical to understand the party's record retention, and thus record destruction policies.

Identify the IT "Gurus"

FRCP 30(b)(6) provides that a party responding to a discovery request must, in essence, designate a person who can help the requesting party understand where information is stored, to be deposed as part of the discovery process.

Proactive Contingency Planning

Develop a plan/process for preservation in the event of litigation.

Hold Memos Tailored to IT Personnel

Consider whether it would be appropriate to prepare a specialized litigation hold memo for the IT department.

Endorsement of Preservation Efforts

The importance of adhering to a litigation hold memo may be enhanced by showing employees that the hold process has the support of management at the top echelons of the company.

Understanding the IT Architecture

In order to preserve documents, it is important to know where they reside.

Understanding the Backup Systems

Determine the location and scope of backup or disaster recovery tapes or SAN and what software was used to make the backups.

Employee Training

Train employees on the proper processes for responding to litigation holds.

Preparing Hold Memo Template and Witness Interview Form

The litigation hold memo should provide a detailed description of the litigation and specific instructions for dealing with electronic data.

Identifying Potential Sources of Information

Relying on the overall document management system is potentially dangerous, as it is inevitably an incomplete source of data.

Addressing Retired Systems

Many times a large organization has gone through numerous hardware and software upgrades in a relatively short time.

Preferred Vendor Arrangements

Consider whether it is prudent to proactively engage preferred providers to collect data on a rush or emergency basis.

Discovery Software to Assist in Preservation

As a result of the problems larger entities often have with preservation, an entire software industry has evolved to meet these needs.

Proactive Email Archiving Systems

Perhaps one of the most promising developing trends is the advent of e-mail archiving software.

Changing Data

In disputes or investigations that involve ongoing issues, preserving historical data is only half of the obligation.