Our regimen for preservation of electronically stored information (ESI) at the federal level — and in particular the “reasonable anticipation of litigation” test for when parties must begin affirmative preservation efforts — is the creation of decisions in “bad facts” cases. As a result, and despite its widespread reach, our current preservation protocol is deeply flawed in critical ways.
Inconsistent: Preservation law is not consistent across jurisdictions. In some circuits, negligence suffices to support sanctions, in others it does not. Some decisions require written litigation hold notices while others have ruled that oral notices can be sufficient.
