Right Discovery Staff Writer
Preserving electronically stored information (ESI) is a foundational component of any effective eDiscovery strategy. When litigation is reasonably anticipated, organizations have a legal duty to ensure that relevant data is not deleted, altered, or lost. This obligation, known as the duty to preserve, applies to all potentially relevant ESI across platforms and formats. Failing to implement adequate preservation measures can lead to serious consequences, including court sanctions, evidentiary exclusions, or adverse inference instructions under Rule 37(e) of the Federal Rules of Civil Procedure (FRCP) [Federal Rules of Civil Procedure, Rule 37(e), 2015 Amendment].
A common and widely accepted method for initiating preservation is the issuance of a legal hold. A legal hold—also referred to as a litigation hold—is a written notice directing employees and relevant custodians to preserve potentially responsive information. The duty to preserve is triggered not at the filing of a lawsuit, but at the point when litigation becomes reasonably foreseeable, a principle underscored in Zubulake v. UBS Warburg LLC (Zubulake IV, 220 F.R.D. 212, S.D.N.Y. 2003). This early trigger ensures that critical evidence is not inadvertently destroyed through routine document retention or deletion policies.
Best practices for legal holds include clear, consistent communication and targeted outreach. Legal hold notices should describe the nature of the litigation, the types of information to be preserved, and the custodians’ responsibilities in detail. It’s not enough to merely send out a notice—organizations must monitor compliance, issue periodic reminders, and provide channels for custodians to ask questions. Technology platforms such as Relativity Legal Hold, offer automation tools that can streamline notice issuance, acknowledgment tracking, and escalation workflows.
Early collaboration with IT and records management is critical. Identifying where relevant data is stored—such as email systems, mobile devices, cloud storage, collaboration tools like Microsoft Teams or Slack, and backup archives—helps ensure comprehensive coverage. The Sedona Conference emphasizes that preservation efforts must be “reasonable and proportionate,” meaning that not every piece of data must be saved, but preservation must be conducted in good faith and tailored to the circumstances of the case.
Finally, maintaining a defensible audit trail is essential. Documentation should include when the legal hold was issued, which custodians were notified, when acknowledgments were received, and what steps were taken to preserve specific data sets. Courts increasingly expect organizations to demonstrate their preservation efforts in detail if challenged. By implementing these practices and using appropriate technology, legal teams can fulfill their duty to preserve ESI while minimizing legal risk and ensuring readiness for litigation.
Topics:
legal hold, duty to preserve, electronically stored information (ESI), litigation hold, Zubulake standard, data preservation, legal hold notice, custodian identification, data mapping, proportional preservation, good faith preservation, mobile device preservation, cloud data preservation, records management, compliance tracking, defensible audit trail, spoliation of evidence, Sedona Principles, preservation technology