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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 used,
and where the data went after collection. If the data is not reasonably accessible, it may be
appropriate to negotiate with the requesting party or seek relief from the court.
Meeting collection requirements often requires the expertise of a reputable discovery
provider; relying on self-collection risks the omission of key data, the inadvertent loss or
modification of metadata, or a claim of self-interest by the opposing party.
88
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 used,
and where the data went after collection. If the data is not reasonably accessible, it may be
appropriate to negotiate with the requesting party or seek relief from the court.
Meeting collection requirements often requires the expertise of a reputable discovery
provider; relying on self-collection risks the omission of key data, the inadvertent loss or
modification of metadata, or a claim of self-interest by the opposing party.
88
