E-Discovery Guidelines: Preservation and Legal Hold

E-discovery guidelines and best practices continue to evolve,  and as any practitioner knows, these guidelines can be somewhat confusing to litigants.  The Introduction to Advanced Discovery’s series on e-discovery guidelines and best practices outlined several key points that courts have recently emphasized in the context of electronic discovery.  A clearer understanding of what electronically stored information (ESI) requires  preservation, the need for litigants to cooperate on  e-discovery issues, clarification of the formats for e-discovery productions, along with guidelines on cost containment are all on the judicial “radar.”

e-discovery-guidelinesPre-Litigation Preservation

One of the first e-discovery guidelines to address in litigation is what duty a party has to preserve electronic documents.  The duty to preserve documents often starts before receiving formal notice of litigation.  In fact, litigants should begin the preservation process as soon as theycan reasonably anticipate litigation.

What Should Be Preserved

Determining what ESI must be preserved requires the examination of several factors.  Parties  need to consider the facts and subject matter of the litigation when deciding what information may be discoverable.  Any ESI that is relevant to the claims or defenses in the litigation should be preserved.  E-discovery guidelines suggest that even where certain sources of ESI may not require production, litigants should carefully consider whether there might still be a duty to preserve – especially if it’s the only source  of any relevant information.  In addition, it is important to consider systems that routinely overwrite or delete ESI, and to modify those systems if necessary for preservation.

Legal Hold Notices

When it comes to legal hold notices, e-discovery guidelines dictate that they should be in writing, concise and clear.  Although the notices will vary based on the facts of the case, they should include a description of the subject matter of the dispute, and date ranges for locating relevant information.  It is important to include a statement that custodians should preserve any potentially relevant ESI, regardless of the location or storage medium used.  Regular compliance monitoring is also crucial.

As the use of technology increases in the business world, the more important it is to understand e-discovery guidelines and best practices.  By understanding and following a few basic guidelines, parties can reduce the likelihood of sanctions due to missteps in e-discovery.  Comments and suggestions regarding these, or other, guidelines are welcome.  For more information on e-discovery guidelines, visit www.advanceddiscovery.com.

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