Courts grant sanctions if they do not see proof of a defensible process across all stages of eDiscovery. In many ways, data preservation underpins how defensible the overall eDiscovery process can be because every step taken afterwards depends on which data was preserved and how. Prudent case teams will be able to establish that all considerations around their preservation procedures have been defensible.
Due to the constant increase in custodian data sources and new data types, previous strategies of preserving and collecting every piece of data are too expensive and impractical today. Even still, an abundance of caution and concern over sanctions leads to organizations over-preserving and bearing unnecessary costs as well as legal liability the longer they hold onto data. Which steps can be taken to defensibly preserve data without going too far?
Legal Holds, Collection, and In-Place Preservation
Most organizations use legal holds as part of their preservation process. This is generally considered defensible by courts as long as the legal holds are organized and sent responsibly. Legal holds are not complete after one-step; they require reminders to be sent and monitoring to ensure that custodians are complying and preserving the necessary data. Depending on the volume of data in a matter, this can pose a challenge to case teams.
In some instances, it is beneficial to collect data and store it in an offsite repository as a way of preserving potentially-relevant information. This removes some of the immediate preservation responsibility from individuals and reduces the risk of accidental spoliation by a custodian or deletion as part of an organization’s data retention policy. However, this requires more technical knowledge and often comes at a higher price point than using legal holds alone. This method can also risk over-preserving and collecting data that is not significant to the matter.
An advantage of preservation by collection is that if a broad approach has been taken and the scope of the matter changes unexpectedly, it is likely that newly-relevant data will already be collected. However, this preservation technique can be hindered by the number of software, applications, and collaboration tools that are common in the average office today. With each data source requiring detailed knowledge of its storage procedures, this can quickly overwhelm anyone who is not an eDiscovery expert.
Using in-place preservation is another way to avoid spoliation sanctions at the preservation stage. Similar to preservation via collection, this requires a targeted approach to avoid overreaching. However, because data is preserved at its source, in-place preservation can save the costs associated with collecting and processing it. One challenge is that it requires eDiscovery technology to properly implement. If taking this approach to data preservation, look for eDiscovery software that can integrate native data sources so that all data types can be preserved and stored easily.
For support creating a defensible preservation process no matter how complex the case, consider working with an eDiscovery vendor who is familiar with the tools and techniques that are consistent with what courts will expect. Their experience can be an invaluable asset when creating preservation procedures that can form the foundation of defensibility on your case.
