Data Preservation Policies Scrutinized by Two Courts

Online Exclusives: Seven Factors to Consider in Triggering a Litigation Hold and Creating a Safe Harbor After a Legal Hold Notice

Contrasting Cases

The 85-page Scheindlin opinion describes the data preservation efforts of 13 investors who sued to recover more than a half-billion dollars in losses from the liquidation of two British Virgin Islands-based hedge funds. While most e-discovery cases deal with spoliation by a defendant, this case involved ESI preservation and collection negligence by the plaintiffs.

"Use of a written litigation hold memorializes the date of the hold, who initiated the hold, a description of the information to be preserved, and the custodians who received the written litigation hold communication," Young says. "Documentation of these details may be important if preservation efforts are ever challenged."

Determining when inside counsel should trigger a hold is more difficult.

Michael Kozubek

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