Over Preservation is a Self-Imposed Sanction

Data preservation is the foundation of a defensible e-discovery process. When a party is sanctioned for e-discovery mistakes, it usually involves failing to preserve electronically stored information (ESI).

While the legal duty to preserve potentially relevant evidence is understood by corporate legal teams, the methods for carrying it out are at issue in the courts. The proliferation of email, cloud storage and other ESI has made the “collect everything” approach too expensive for many businesses, yet they must take reasonable steps to ensure data is being preserved. The foundation of intelligent preservation is a sound legal hold notification process. The process need not be complex. The standard is reasonableness, good faith and competence.

To meet high standards of preservation, mitigate the risk of costly sanctions and prepare for adversaries, the following elements are imperative: proportional and cost-effective response; ability to act immediately following a triggering event; visibility of the custodians: real-time tracking of compliance; detailed audit trail of actions; process automation for repeatability and cost-efficiency; and strong internal communications to reinforce the importance of the preservation process.

Best practices and automation enable cost-effective and intelligent preservation, mitigate the risk of inadvertent spoliation and make it easier to negotiate a fair and reasonable scope of discovery, with proportionality and collaboration. The key is to collect, process, review and produce only what’s necessary, and to get past the “preserve everything forever” mentality.