When counsel for an organization has knowledge or belief that litigation has begun or can reasonably be anticipated, a legal obligation is triggered requiring that reasonable steps be undertaken to maintain relevant and discoverable ESI. The responding entities and their counsel have an immediate legal duty to identify potentially relevant ESI sources to preserve in good faith. Key custodians must be identified quickly, and their relevant ESI preserved. Other relevant ESI not held by custodians (in databases, or on data backup systems) must be preserved as well. All should be aware of the potential for civil and criminal consequences for destruction of potentially relevant evidence.
Best practices for the identification stage begin and end with smart lawyering–reaching out and quickly learning enough about the key issues in the matter and the organization’s employees involved so that relevant ESI can be located and preserved as soon as possible. The vast majority of e-discovery sanctions are issued for failure to preserve, so a strong identification and preservation process can mitigate an organization’s biggest source of e-discovery risk.
