ED102 – In the Beginning: Identification and Preservation Fundamentals
practice guide
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
Matthew Verga, Esq.
Director of Education
From the author
When the Needles Aren’t in the Haystack: Off-Channel Communications
Never have there been so many communication devices, apps, and services available for use by employees, and employees helping themselves to these options can create significant identification, preservation, and collection challenges
In Case You Missed It: eDiscovery and Education in 2022
From questions of intent, to challenging sources, to privacy concerns, 2022 has been another year of adaptation and evolution in eDiscovery
ED102 – In the Beginning: Identification and Preservation Fundamentals
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.
Gone Viral: Social Media in eDiscovery
In 2015, the first explicit reference to social media appeared in the FRCP. Since then, many new cases involving social media evidence have appeared each year, and the vast majority of law firms have handled at least some cases involving such evidence.