This is the second in a series of articles that will cover the different phases of e-discovery.
“A really good conspiracy theory can never be disproved.” ~ Anonymous
Given the mandate to address preservation issues up front, it makes sense to put forward concrete proposals for preserving evidence that may be of particular concern. At the same time, however, it also makes sense to clarify everyone’s obligations by stating what does not need to be preserved. This is particularly true regarding data of marginal relevance (low benefit) that requires an extraordinary technical effort (high cost) to recover. Certain kinds of data are so likely to have this property that they are built into the 7th Circuit’s Principles:
“The following categories of ESI generally are not discoverable in most cases, and if any party intends to request the preservation or production of these categories, then that intention should be discussed at the meet and confer or as soon thereafter as practicable: