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eDiscovery Preservation: Implementation

Not All Cases Are Created Equal, Nor All Witnesses

When considering the scope of the preservation obligation, it should be noted that not all cases are created equal. Parties may be held to stricter preservation obligations when dealing with a governmental investigation or a "bet the company" litigation than might be applicable for a "slip-and-fall" lawsuit or a routine contract dispute with a relatively small amount in controversy. Similarly, stricter approaches to preservation may apply to "key players" than may apply to more secondary or peripheral witnesses.

Unfortunately, there is little direction in case law or in the Advisory Committee Report on the Proposed Amended Federal Rules of Civil Procedure as to the requirements of preservation. However, in citing the Manual for Complex Litigation (4th), the Advisory Committee notes that an overbroad approach to preservation "may be prohibitively expensive and unduly burdensome for parties dependent on computer systems for their operations." See, May 27, 2005 Report of the Civil Rules Advisory Committee, p. 48. The Committee recommends that the parties discuss preservation of discoverable information during the initial Rule 26(f) conference. As a practical matter, this conference may take place weeks, or even months, after the duty to preserve arises and thus well after the party has made its preservation decisions. The Committee does provide the following guidance: "Parties must balance the competing needs to preserve relevant evidence and to continue routine operations critical to ongoing activities." Id. at 47. "Whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case." Id. at 65. If the parties cannot agree on how to strike that balance, the current draft of Rule 26(b)(2)(B) provides that either the requesting or the responding party may seek relief from the court.

Guidance from Zubulake Case

Judge Scheindlin's discussion of preservation obligations in Zubulake V offers additional guidance. Zubulake v. USB Warburg, 2004 WL 1620866 (S.D.N.Y.). "Above all, the requirement must be reasonable." Zubulake V at 29. Further, Judge Scheindlin acknowledges that, while certain precautions can be taken to ensure preservation, those precautions "may not be enough (or may be too much) in some cases." The benchmark is that parties are generally required to do what is reasonable under the circumstances of the particular litigation.

Witnesses or Custodians

A similar balancing approach must be applied with respect to the decision-making process on what documents and data must be captured for preservation purposes for particular witnesses or custodians in each matter. For example, in an employment discrimination case, it may be appropriate to "aggressively" preserve the data of the other members of the litigant's former department, as well as the supervisors several layers up the chain of authority. Perhaps this should be done by capturing live data off of email and shared servers or taking a forensic image of the hard drive of the alleged perpetrator. Further, Human Resources employees involved in these issues may also need to have more aggressive preservation efforts applied. By contrast, "secondary" witnesses, such as employees in tangential departments, or "peripheral" witnesses, such as employees who had casual contact with the department, may require less stringent preservation efforts. On the other hand, if a company is subject to a civil or criminal investigation by the SEC for overstating earnings or the DOJ regarding allegations of price fixing, it may be appropriate to make images of hard drives for all of the key members of the marketing group and upper management.

The duty to preserve information that may later be used in a lawsuit or investigation is a very difficult issue in many ways. There are many variables at play and careful consideration (closely working with counsel) of each one of these variables is critical. One thing is clear: the specific circumstances surrounding each action, and indeed each witness or custodian, are vital in making any determination regarding the duty to preserve.

Source: EDRM (

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