When collection is the only defensible means of preservation

You can’t always rely on custodians to preserve ESI, as easy as it is to do so

There are many options when it comes to preserving electronically stored information (ESI). These range from less to more complete, and from less to more expensive. Which point on the spectrum you choose may depend on a number of factors, but such choices should never be based solely on cost. You must identify and evaluate risk factors as well.

Fortunately, the e-discovery jurisprudence has provided some guidelines to complement common sense in choosing the right preservation method for any particular investigation or litigation.

  • Consider the allegations in relation to the custodians. Ask whether the allegations directly or indirectly implicate the behavior of certain custodians. For example, does the employment case involve allegations of discrimination carried out by specifically named individuals? If so, then leaving it up to them whether and what to preserve is probably ill-advised.

Their incentive to “lose” information is too great. Even if the allegations against them are false, if they inadvertently lose ESI they were supposed to preserve, no one will believe it was an accident.

Rule #1: The wolf should not guard the henhouse. A conservative approach does not rely on people to preserve their own data where the preservation obligation arises from allegations that directly or indirectly implicate their personal behavior. Accordingly, collecting the ESI—taking it out of the custodians’ hands—is the preferred method of preservation here.

Contributing Author

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Adam Cohen

Adam Cohen is Managing Director at Berkley Research Group and a Certified Information Systems Security Professional (CISSP) and former practicing attorney who for more than 20 years...

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