Page 98 - Leaders in Legal Business - PDF - Final 2018
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retention dates.
Preservation
Preservation of potentially relevant evidence is the next phase of the e-discovery process.
The duty to preserve typically arises as soon as the party anticipates litigation or should
reasonably anticipate it. During the preservation stage, clients must protect their data from
intentional or inadvertent deletion, destruction, or modification.
Parties that fail to uphold the duty to preserve face the possibility of serious sanctions for
the loss of evidence, which is called “spoliation.” The severity of sanctions depends on several
factors, including the prejudice to the opposing party as well as the steps the producing party
took to preserve the information. There is a continuum of sanctions a court may impose, ranging
from requiring parties to redo discovery, imposing monetary sanctions, and issuing an adverse
inference instruction, to making other dispositive rulings, which can include dismissal. Courts
have also sanctioned counsel who fail to take affirmative steps to ensure their clients are
preserving data.
Three steps are critical during the preservation stage:
1) The first step is to issue a litigation hold to all custodians of potentially relevant
documents. The hold should also be sent to personnel from IT and the records
departments, notifying them to suspend any automatic deletion of data (which is common
in email systems, for example). Sending a preservation notice is not enough to meet
counsel’s duty, however; counsel must ensure that recipients understood the notice and
plan to comply with it. Throughout the litigation, reminders of the ongoing duty to
preserve should be sent to all custodians, and counsel should update the hold if necessary.
Furthermore, lawyers should follow up with custodians as well as IT and records, and
monitor their adherence to the hold.
2) The second step is to protect the ESI either by collecting it or otherwise sequestering it to
prevent its loss.
3) The final step is to release the hold at the conclusion of the matter and reinstate the
normal records retention schedule.
Collection
In the collection phase, all potentially responsive ESI from custodians and other client
data sources are gathered. The failure to collect the data early can drive up the expense of
discovery.
Data can come from a variety of sources, including but not limited to servers, individual
computers, cloud storage, mobile devices, backup tapes, personal computers and devices, and
social media. Tools are available to help manage the headaches associated with mobile data: For
example, mobile device management software can help secure, monitor, and support company-
or employee-owned mobile devices. Any technique or tool used to collect the data must be
forensically sound to ensure the integrity of the data. Counsel should also ensure that the client
has clear records demonstrating the chain of custody for collected information, including where
the data originated, who handled it, what steps were taken to collect it and when, what tools were
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Preservation
Preservation of potentially relevant evidence is the next phase of the e-discovery process.
The duty to preserve typically arises as soon as the party anticipates litigation or should
reasonably anticipate it. During the preservation stage, clients must protect their data from
intentional or inadvertent deletion, destruction, or modification.
Parties that fail to uphold the duty to preserve face the possibility of serious sanctions for
the loss of evidence, which is called “spoliation.” The severity of sanctions depends on several
factors, including the prejudice to the opposing party as well as the steps the producing party
took to preserve the information. There is a continuum of sanctions a court may impose, ranging
from requiring parties to redo discovery, imposing monetary sanctions, and issuing an adverse
inference instruction, to making other dispositive rulings, which can include dismissal. Courts
have also sanctioned counsel who fail to take affirmative steps to ensure their clients are
preserving data.
Three steps are critical during the preservation stage:
1) The first step is to issue a litigation hold to all custodians of potentially relevant
documents. The hold should also be sent to personnel from IT and the records
departments, notifying them to suspend any automatic deletion of data (which is common
in email systems, for example). Sending a preservation notice is not enough to meet
counsel’s duty, however; counsel must ensure that recipients understood the notice and
plan to comply with it. Throughout the litigation, reminders of the ongoing duty to
preserve should be sent to all custodians, and counsel should update the hold if necessary.
Furthermore, lawyers should follow up with custodians as well as IT and records, and
monitor their adherence to the hold.
2) The second step is to protect the ESI either by collecting it or otherwise sequestering it to
prevent its loss.
3) The final step is to release the hold at the conclusion of the matter and reinstate the
normal records retention schedule.
Collection
In the collection phase, all potentially responsive ESI from custodians and other client
data sources are gathered. The failure to collect the data early can drive up the expense of
discovery.
Data can come from a variety of sources, including but not limited to servers, individual
computers, cloud storage, mobile devices, backup tapes, personal computers and devices, and
social media. Tools are available to help manage the headaches associated with mobile data: For
example, mobile device management software can help secure, monitor, and support company-
or employee-owned mobile devices. Any technique or tool used to collect the data must be
forensically sound to ensure the integrity of the data. Counsel should also ensure that the client
has clear records demonstrating the chain of custody for collected information, including where
the data originated, who handled it, what steps were taken to collect it and when, what tools were
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