Preservation of Potentially Relevant ESI: An Ounce of Prevention is Worth a Pound of Cure
Even though sometimes it doesn’t feel like it, discovery writ large (including discovery of electronically stored information – or ESI) is not an end unto itself. Instead, it’s a necessary and important means to an end – namely discovering the facts that allow for the resolving of a dispute, investigation, or subpoena response matter on the merits.
As such, the last thing any of us charged with overseeing and conducting discovery want to have happen on our watch is for the discovery process to become a “side show” that might allow an opponent to distract from the ultimate goal at hand, take up even more of a client’s valuable time, and increase costs. Yet when it comes to the preservation of potentially relevant ESI, even small mistakes have the potential to do just that.
In last week’s post, I discussed the Electronic Discovery Reference Model (or EDRM) and offered multiple considerations to help make the identification of potentially relevant ESI successful. In this continuation, here are some considerations for making sure the important task of preserving potentially relevant ESI goes well.
- First, start with written document hold notices. Deliver them to the content creators and IT professionals who came to light during the identification stage. Be sure the notice is written in “plain English” (not “lawyer speak”). Describe the general background of the matter at hand, the types of ESI and other materials that must be preserved, and the instructions for preservation. Consider including a “frequently asked questions” document with the notice or – in appropriate circumstances – consider meeting with relevant custodians to answer questions in person. And get an acknowledgement in writing back from each custodian confirming that they have received, understood, and will comply with the directives in the notice.
- Second, manage the hold notices well. Send periodic reminders to custodians (and request a return acknowledgement) until the matter at hand is resolved. Be sure to coordinate with your client’s Human Resources and IT departments to ensure that the relevant ESI contained within (for example) laptop computers, handheld devices, and other equipment and systems is not lost as custodians move within or leave the company.
- Third, remember that it is almost always safer to preserve broadly and then narrow the scope of relevant ESI and other materials as a matter proceeds – especially in the beginning or in appropriate cases. Review applicable document retention policies and suspend document purging thereunder, as appropriate. Consider suspending any automatic email purging or other electronic data management protocols for relevant custodians. And although backup systems may not be a preferred or even allowable ESI source in the first instance, consider suspending backup recycling procedures until it is known whether documents important to the claims and defenses in the matter can be located and produced from more accessible data sources.
- Finally, those who know and have worked with me could testify that I’m a huge fan (for good reason) of checklists. There are many excellent checklists available that can help an attorney and his or her client remember these and other important aspects of ESI preservation, but once again one of the best is The Sedona Conference® Jumpstart Outline, available here.
The eDiscovery consulting practice at Level 2 Legal welcomes the opportunity to advise attorneys and their clients concerning all aspects of litigation readiness and the EDRM, especially including the preservation of ESI and other materials.