Although there is plenty of guidance in case law and in the Federal Rules of Civil Procedure regarding court-supervised electronic discovery, companies responding to government requests find themselves on a journey without a road map. In the absence of court supervision or rules, and given the tendency of government investigations to change focus over time, a responding company cannot hope to identify and preserve every byte of relevant electronically stored information. There is an element of fortune-telling inherent in every preservation effort. The importance of forensic analysis in recent cases, however, suggests that preservation of hard drives should be a high priority.
The first step of a government investigation typically will be a grand jury subpoena, or a voluntary request or subpoena from a government agency, calling for the production of documents on specified topics. Because government investigations typically involve multiple subpoenas issued over time as the government’s investigation becomes more targeted or changes direction, however, companies typically try to preserve broadly in response to the initial request. This effort often includes a preservation notice issued to every employee within the company or within specific offices or departments.