Preservation: It’s a simple term we often see used throughout the industry. But the activities associated with preservation can and must take place based in different contexts. For example, as part of an on-going, “business-as-usual” process, records and critical reference materials should be preserved to ensure ready access for users. Alternatively, when a legal hold is issued, a firm has an obligation to preserve any relevant materials related to the discovery request.
Wait a minute: If a firm is preserving electronic materials in the normal course of business, why would it have to preserve the electronically stored information (ESI) again as a result of a legal hold?
The answer depends on whether a firm is actually disposing of ESI on a regular basis. If everything is kept “forever,” meaning no systematic and rational process is employed to delete and destroy content, then preservation as a result of a legal hold is easy – it should already have been done. Just send out a reminder (i.e. hold notice) to custodians just in case, and a firm’s obligations are satisfied.
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Activity
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Timing
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Business Objective
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Preservation
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“Pre-trigger” – Prior to a discovery event as a normal course of business
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Ensure the proper materials are retained only as long as required or needed
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Suspend Disposition
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“Post-trigger” – As a result of a discovery event or legal hold
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Ensure materials under legal hold are not destroyed
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But for those firms that do dispose of content in a systematic manner, preservation now becomes a process of suspending disposition. This can be complicated.
Consider a firm that may have 50 active legal holds, spanning 4 years. Perhaps 10% of the content under legal hold applies to two or more discovery requests. The content includes email, snapshots of database records, system-generated reports, and operating policies stored on network drives. Across the 50 legal holds, more than 250 custodians are involved, each with over 2GB of ESI they feel warrants preservation.
No wonder it takes a small army of people and millions of dollars to sort this out. And because of this effort, the easy path (and the cheap one, from an operating perspective) is to preserve everything and dispose of nothing. I do believe the situation will improve over the next 5 years as the automated tools become more sophisticated and recordkeeping practices more refined, but it will be a long haul.
James Watson, Jr., PhD can be reached at 312-881-1620, jwatson@doculabs.com, or Tweet me @jameswatsonjr
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