Summary
Identification and preservation are the first and most fundamental phases of an electronic discovery effort. The duty of (identification and) preservation is a foundational concept in our legal system that grows out of the common law concept of “spoliation,” which is nearly 300 years old. Essentially, if courts exist to make determinations about disputed facts, and if the trier of fact must make those determinations using the available evidence, then no litigant should be allowed to gain advantage in those determinations by hiding or destroying relevant evidence before the trier of fact can consider it.
As we will see in numerous contexts, ESI spoliation remains a frequent issue – particularly in the gray area where new devices, applications, or services are transitioning from niche adoption to mainstream use. Hence the importance of these phases in an eDiscovery effort: almost every other type of failure can be fixed with adequate time and money, but once unique, relevant ESI is gone, it’s gone. In this free Practice Guide, Consilio Director of Education Matthew Verga, Esq., reviews the fundamentals practitioners need to know about identification and preservation to fulfill this duty.
In this Practice Guide
- Triggers and Applicable Rules
- The Role of Legal Holds
- Common Pitfalls
Key Insights
- The Very Broad Potential Scope
- The Importance of Imagination and Investigation
- Key Steps Beyond Legal Holds
Practice Guide Download
About the Author
From the author
Summiting the Mountain: Are You Ready for a GC Role?
Many attorneys dream of one day landing a coveted General Counsel position because it’s considered the career pinnacle for in-house counsel. To help inform these job-seekers, I’ve asked successful GCs and CLOs about their tips and suggestions for attorneys aspiring to reach the top seat in a corporate legal department.
ED103 – The Grand Scavenger Hunt: Collection Fundamentals
With source types multiplying – including challenging sources like smartphones, social media, and collaboration tools, it is more important than ever for legal practitioners of all types to familiarize themselves with the fundamentals of collection so that they can assist in spotting potential issues and identifying appropriate solutions.