ServerRoom_TS-178629045I am pleased to announce the availability of our firm’s updated publication, A Guide to ESI Preservation Responsibilities [updated January 2016]I believe this white paper serves as a useful resource to anyone dealing with the complicated issue of preservation of electronically stored information (ESI), particularly in product liability matters.

The duty to preserve ESI and other evidence arises once litigation or an investigation can be reasonably anticipated. This duty has been addressed repeatedly in published opinions over the past few years and is well established across all litigation areas, including product liability. Nevertheless, as an e-Discovery practitioner, I receive a steady flow of inquiries from clients and fellow attorneys who are seeking to confirm whether a legal hold should be issued and, if so, the exact steps they must take to ensure defensibility.

It’s obvious in many situations when the duty to preserve has been triggered. The occurrence of a catastrophic event and the filing of a lawsuit are easy examples. Other times a fact-sensitive analysis is required, such as when a problem employee is terminated or an organization becomes aware of a data breach or cyber attack. The safe approach when in doubt is to conclude that the duty to preserve has been triggered.

At this point, litigants and potential litigants are typically best advised to:

  • Issue a formal legal hold
  • Identify ESI locations
  • Identify key players
  • Conduct custodian & IT interviews
  • Suspend routine deletion
  • Monitor employee compliance with the hold
  • Amend and reissue the hold when appropriate.

The law in this area is still rapidly developing. Rule 37(e) of the Federal Rules of Civil Procedure is likely to soon be revised, as I addressed earlier this year, and a growing body of case law continues to clarify litigants’ preservation obligations, as covered in Wilson Elser’s recent ESI Case Law Update.  Perhaps one day the scope of data to preserve may be reduced. Even so, it’s unlikely that preservation best practices will be radically altered any time soon.

Defensible preservation of ESI is not always straightforward. Some steps identified above may not be at issue, and certainly this is not an exhaustive list of actions that may be appropriate.  Our white paper A Guide to ESI Preservation Responsibilities [updated January 2016] is designed to guide litigants through the implementation of a defensible legal hold process. But of course, as we’ve pointed out, there is no substitute for a thorough discussion of specific circumstances as they relate to a specific matter.

We encourage our readers to share their thoughts on the topic of preservation of ESI in the e-Discovery context and their impressions of the Guide.