The E-Discovery Process – Preservation
Preservation for electronic discovery has become a complicated, multi-faceted, steadily-changing concept in recent years. Starting with the nebulous determination of when the duty to preserve arises, then continuing into the litigation hold process (often equated to the herding of cats) and the staggering volumes of material which may need to be preserved in multiple global locations, platforms and formats, the task of preservation is an enormous challenge for the modern litigator. Seeking a foundation in reasonableness, wrestling with the scope of preservation is often an exercise in finding an acceptable balance between offsetting the risks of spoliation and sanctions related to destruction of evidence, against allowing the business client to continue to operate its business in a somewhat normal fashion.
The Importance of Meet and Confer
Certain suggested standards and guidelines have been emerging to provide checklists for those preparing (and preserving) to respond to electronic requests for production. However, probably the most important and helpful development which has evolved in preservation is the mandate in FRCP and other state rules for the parties to meet and confer early in the discovery process to attempt to reach agreement on important issues of scope and responsibilities related to discovery. As we continue, the "old school" adversarial approach to discovery, and its hide-the-ball tactics, is rapidly giving way to a more collaborative common search for reasonableness by counsel and technical resources for both sides of disputes, when it is motivated by avoidance of the staggering potential costs of out-of-control electronic discovery. All of this search for common ground, and fiscal reasonableness for the clients, begins with how good a job the parties do in fleshing out the approach to preservation and the definitions of what may be considered relevant material.
Understanding the Territory
The gargantuan scope and complexity of electronic discovery, and meeting the client's duty to preserve relevant evidence, has dictated some new learning experiences for both the legal and the IT communities. It has been noted by one of the pioneers in the burgeoning ED industry that "the reality of electronic discovery is it starts off as the responsibility of those who don't understand the technology, and ends up the responsibility of those who don't understand the law." Expansion of the understanding and cooperation of both the legal and technological disciplines is a critical component of effective preservation, but ultimately, it is the legal counsel protecting the client's interests who must learn the most about the client's IT architecture, policies, personnel and culture. Developing a successful preservation plan will be nearly impossible if legal counsel is not fully aware of all the places in the client's electronic world where relevant material may be stashed. Document retention and destruction policies - and practices - must be defined and under control. The attention and buy-in of key players, underscored by communications from senior management, must be obtained to assure compliance with legal hold orders and the construction of good preservation fences around relevant material.