A multi-part series on the fundamentals eDiscovery practitioners need to know about the identification and preservation of potentially-relevant ESI
In “In the Beginning,” we reviewed the importance of effective identification and preservation as well as the triggers for doing so. In “Legal and Technological Scope,” we reviewed the scope of what must be identified and preserved. In “Imagining the Possibilities,” we reviewed the first steps for identification. In “Investigating the Realities,” we reviewed the investigative aspects of identification. In “The Role of Legal Holds,” we reviewed the role of legal holds in preservation. In this final Part, we discuss common pitfalls and key takeaways.
We have now reviewed how important identification and preservation are, how broad their scope might be, how to go about brainstorming and investigating to identify what needs to be preserved, and how to issue and monitor compliance with legal holds. What remains is to think about common preservation pitfalls, about situations in which immediate collection is called for, and about our key takeaways from this series.
The three most common pitfalls in identification and preservation all relate to technological blind spots:
These pitfalls can be avoided – in part – by making sure you consider all source types and service providers when doing your identification, by making sure all the custodians and service providers responsible for the relevant systems and services receive your legal hold notice, and by following up to make sure those recipients have actually deactivated or modified automatic janitorial functions where needed.
The other part of avoiding these pitfalls is proceeding promptly to actual collection for any source or source type you fear is at a high risk of loss or alteration. For example, smartphones entail a high risk of data loss due to the triple threats of automatic deletion of old messages, user deletion of messages, and frequent device replacements/upgrades. Preservation through collection ensures at-risk data is preserved for later analysis, review, and production.
Another scenario worth discussing is an investigation in which there is a possibility of bad actors among the relevant custodians. In such situations, there is a possibility that receiving a legal hold notice will prompt the bad actor(s) to intentionally destroy or alter materials prior to collection, effectively engaging in spoliation to hide evidence of their individual wrongdoing.
In matters where this is a concern, it may be necessary to undertake certain collection activities immediately – even before issuing a hold notice to all relevant custodians. By moving immediately to collect what you believe to be the key sources from the key custodians, you can prevent loss due to intentional spoliation, and preliminary analysis and review can begin while additional identification, preservation, and collection efforts are still ongoing in parallel.
There are several collection strategies that can be employed to acquire key data without alerting suspected employees. For example:
Because, in this context, speed and secrecy are most important, it is generally best to err on the side of over-collection (e.g., capturing full images, mailboxes, etc.) from those key sources to avoid missing something that could then be spoliated after hold issuance.
There are five key takeaways from this series to remember:
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