Preservation is the process of keeping physical items and electronically stored information (ESI) intact for discovery during litigation. To preserve potential evidence, parties must protect that information from being destroyed, deleted, lost, or altered in any way.
The duty to preserve evidence begins from the moment that a party can reasonably anticipate litigation. This is often called the preservation trigger. The trigger event may happen when something goes wrong, like when an employee is fired or someone is injured. Or, it may not occur until later, when the plaintiff files a complaint or a lawyer sends a letter demanding that the other side preserve evidence. It can also occur when a plaintiff firsts contemplates the potential for litigation.
Preservation ensures that both sides retain all of the information that may be important to resolving a dispute in court. Parties have a duty to preserve non-duplicative information that is relevant to the parties’ claims and defenses, and proportional to the needs of a case. The key to successful preservation is finding the middle ground of relevance: preserve too much and discovery is overwhelmingly expensive, but preserve too little and a party can be penalized for allowing important information to be destroyed. Ideally, parties preserve everything they need and nothing they don’t.
Preservation can be risky during discovery for two reasons. First, when it comes to ESI, relevant data is difficult to identify, locate, and protect. Data is generally disorganized and is constantly being created, moved, modified, and deleted. Data may be located in multiple places and scattered across many different silos, from cloud storage repositories to internal servers and laptop computers or even employees’ personal devices, if the business has a bring-your-own-device (BYOD) policy.
Second, under-preservation can’t be corrected later. Often, when evidence that should have been preserved is lost, it cannot be restored or replaced. When relevant evidence is spoliated — irretrievably lost — the court may impose curative measures and sanctions for that spoliation.
On the relatively mild end, a court may sanction the party that lost evidence to pay all or a portion of its opponent’s attorneys’ fees and costs. On the opposite end of the spectrum, the court could impose the harshest sanction, ending the case by ordering summary judgment for the opponent. The specific measures available depend on whether a party acted intentionally to deprive its opponent of information or was merely negligent in allowing information to be lost, as well as on how much damage or prejudice the loss of information caused the opponent.
Potential litigants generally initiate preservation by issuing legal hold notices, which advise data custodians that they must preserve and protect relevant information they may have about the dispute. A legal hold also requires that a company suspend its usual records retention and deletion policies.
Preservation is the process of keeping physical items and electronically stored information (ESI) that may be relevant to a dispute intact and available for discovery during litigation.