In the Beginning, Identification and Preservation Fundamentals Series Part 1

A multi-part series on the fundamentals eDiscovery practitioners need to know about the identification and preservation of potentially-relevant ESI

So far, in our four Fundamentals Series, we have covered the fundamentals of collection, of processing, of early case assessment, and of review.  We turn our attention now to the first and most fundamental phases of an electronic discovery effort: identification and preservation.

The Importance of the Duty of (Identification and) Preservation

The duty of (identification and) preservation is a foundational concept in our legal system that grows out of the common law concept of “spoliation,” which is Amory v Delamirie – more than 200 years old.  Essentially, if courts exist to make determinations about disputed facts, and if the trier of fact must make those determinations using the available evidence, then no litigant should be allowed to gain advantage in those determinations by hiding or destroying relevant evidence before the trier of fact can consider it.

As we have seen in numerous contexts, ESI spoliation remains a frequent issue – particularly in the gray area where new devices, applications, or services are transitioning from niche adoption to mainstream use.  Hence the importance of these phases in an eDiscovery effort: almost every other type of failure can be fixed with adequate time and money, but once unique, relevant ESI is gone, it’s gone.

Identification, Preservation, and the Duty of Competence

Beyond simply being important, the ability to successfully identify and preserve relevant ESI may also be an ethical requirement for attorneys to fulfill their duty of technology competence.  For example, the California duty of technology competence for eDiscovery, which has been widely discussed as a useful model for all attorneys, explicitly discusses identification and preservation skills in four of its nine core requirements:

• “initially assess e-discovery needs and issues, if any”
• “implement/cause to implement appropriate ESI preservation procedures”
• “advise the client on available options for collection and preservation of ESI”
• “identify custodians of potentially relevant ESI”

In this conception of it, avoiding spoliation of ESI is at the heart of the duty of eDiscovery competence.

Triggers for the Duty of (Identification and) Preservation

The duty to identify and preserve documents often arises even before a case is actually filed or commenced, because the duty arises not when there is litigation but when there is reasonable anticipation of litigation (or agency action, etc.).  As explained in “Guideline 1” of The Sedona Conference Commentary on Legal Holds:

A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation.

Examples of triggering events include: discovery of a legal or regulatory violation by an employee; receipt of a legal hold notice from a regulatory agency; hearing a terminated employee threaten suit; receipt of an actual complaint or subpoena; and, many more.

Upcoming in this Series

In the next Part, we will continue our discussion of identification and preservation fundamentals with a look at the scope of what must be identified and preserved.