Legal Requirements

While this document is not intended to be used as legal advice, a brief discussion of the duty to preserve relevant and material evidence is appropriate. The duty to preserve evidence to be used in a contested matter, such as a litigation or governmental investigation, certainly pre-dates electronically stored information and the resultant process of electronic discovery. For example, if faulty wiring was the cause of an industrial accident and shreds of the wiring are found by employees of the company who owned the facility, the shreds would definitely be useful to a trier of fact at some point, thus the company has an affirmative duty to preserve those fragments - no matter how advantageous it may be for them to discard them. Many early philosophical discussions debated the duty to preserve and produce evidence that is detrimental to one's legal position, and many pointed out that this approach was somewhat inconsistent with the adversarial process. That being said, from a legal standpoint the duty to preserve evidence that may be relevant and material to a future legal proceeding (or may help an adverse party find other evidence it may need) is clearly established, in principle and is outside the purview of this piece.

With the advent of the information age, the "frayed wire" evidence referred to above can be represented today by "smoking gun emails" and other electronically stored business records. However, the applicability of the analogy ends there. For example, there are no auto-delete routines in place that automatically will find and destroy the wire shavings unless steps are taken to prevent them from doing so. Therefore, there are considerations peculiar to the preservation of electronically stored information. A detailed discussion of the various considerations one must take into account regarding the preservation of relevant electronically stored information is the topic covered below.

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Legal Requirements

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

General Rules

In most circumstances, there are several consequences for failing to preserve data, and in some cases the case law, rules and regulations can combine to result in a particular outcome.

Documents Subject to Preservation

While a "laundry list" of types of documents (e-mail, word processing documents, etc.) could be helpful in determining what types of documents must be preserved, it could also be dangerous.

Non-Party Considerations

It is within the court's discretion to bind non-parties to various forms of the duty to preserve, when it is determined by the court that the necessity is present.