The unintentional destruction of significant electronically stored information (ESI) is much more likely to occur with eDiscovery than it is with traditional paper-based files. This is largely due to the routine deletion or altering of data performed in the everyday operation of most IT systems. For example, some organizations routinely and improperly purge email files based on the availability of storage space and the age of the files.

Courts have long held that the duty to preserve relevant information not only exists during litigation, but extends to the period before litigation when a party should have reasonably anticipated litigation, or when a party should have known that evidence may be relevant to anticipated litigation.

The understanding by the courts creates unique and critical challenges for organizations in the age of electronic data and information. In order to ensure good faith action, a party must implement a systematic “litigation hold” once litigation is reasonably anticipated. The litigation hold process essentially creates a snap-shot of all electronic information relevant to a matter in litigation from a given time period forward. Once the hold is in place, it is less likely that electronic data will be lost through routine destruction.

An organization’s failure to quickly and effectively respond to anticipated litigation and implement a litigation hold relative to its ESI can have a devastating effect on the outcome of litigation. Preservation must be taken seriously in order to avoid sanctions, which can include fines, a negative inference instruction to the jury, and even default judgment, by the court.

CSI eDiscovery Consultants assist with the evaluation and implementation of the litigation hold process. We work closely with our clients to facilitate communication and confirmation of the litigation process, as designated and designed in conjunction with corporate and outside legal counsel to craft the litigation hold document and assure it identifies and isolates relevant data sets for preservation.