Identification and Preservation

We turn our attention now to the first and most fundamental phases of an electronic discovery effort: identification and preservation. As we have seen in numerous contexts, ESI spoliation remains a frequent issue, 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.

The first thing you must know to undertake effective identification and preservation activities is the potential legal and technological scope of things for which you might need to be looking. For our purposes, that scope comes from the Federal Rules of Evidence and Civil Procedure and relevant case law, and it can be quite broad.

We’re going to break down the identification process into two parts: imagination and investigation. We don’t spend a lot of time talking about imagination in legal practice, but it’s pretty essential to effective identification. Each new discovery project can be fairly opaque at the outset, with only the essentials known. The first step, then, must be brainstorming to figure out what and who might be relevant.

Now that you have completed your initial brainstorming of potential materials, properties, and people, you are ready to begin the investigation part of identification. A variety of investigative options are available for finding out how reality lines up with the brainstorming you’ve done to get started. The most important are: targeted interviewing, data mapping, and sampling.

Once you’ve completed your imagination and investigation activities, once you have identified the potentially-relevant materials within your organization, you are ready to take steps to actually preserve those materials. The first and most important of those steps is the issuance of a legal hold instructing the custodians of potentially-relevant materials regarding the need to preserve them.

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.