Is the Use of “Preserve in Place” a Gamble in Electronic Discovery?

Plenty has been written on both sides of the preserve-in-place debate. The preservation duty in e-discovery, though, continues to be a root cause of sanctions and other trouble for litigants when ESI is involved. In its 7th Annual Litigation Trends Survey, Fulbright & Jaworski reported that 55% of responding companies still rely on custodians to identify and preserve their own information as the method used most frequently to preserve potentially relevant information in litigation or an investigation. Also, 68% of respondents thought that the scope of the preservation duty needed further clarification.

One thing that does not seem to require much clarification is that the spoliation, whether inadvertent or intentional, can lead to serious consequences. Leaving ESI “in the wild” is a gamble at best, and just like Vegas, the odds are stacked against us.

Preserving ESI in place sounds like a great idea at first, especially to the IT team – index all of the ESI in place and then search and collect what is actually needed for review and production – if and when that is required. It may even seem to make better sense from a budgeting perspective given the fact that while preservation is required in all cases, the degree of production varies widely from case to case. Frequently overlooked, however, are the many pitfalls that can lead to the inadvertent destruction or failure to produce relevant ESI — all resulting in serious sanctions from the court that the Legal team wants to avoid. These pitfalls include:

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Source: eDiscovery 2.0
By: Brandon D'Agostino