Right Discovery Staff Writer
Preserving electronically stored information (ESI) anchors any serious eDiscovery strategy. Once litigation is reasonably anticipated, organizations must keep relevant data from being deleted, altered, or lost. That duty to preserve spans platforms and formats. Weak preservation invites sanctions, exclusions, or adverse inferences under Rule 37(e) of the Federal Rules of Civil Procedure.
A legal hold—litigation hold—is the customary vehicle: written direction that employees and custodians retain potentially responsive information. The clock starts when dispute is reasonably foreseeable, not when the complaint drops— Zubulake v. UBS Warburg LLC (Zubulake IV, 220 F.R.D. 212, S.D.N.Y. 2003) remains the north star for that trigger, keeping ESI from vanishing under routine retention sweeps.
Notice content matters: describe the matter, the data families implicated, and custodian duties plainly. Issuance is only step one—monitor acknowledgments, refresh reminders, and route questions to people who can answer them. Platforms like Relativity Legal Hold automate issuance, attestation, and escalation without replacing judgment.
Loop IT and records management early. Map mailboxes, mobiles, SaaS workspaces (Teams, Slack), and backup tiers before the opposition asks. The Sedona Conference stresses preservation that is reasonable and proportionate—good faith over infinite capture.
Build a defensible narrative: when the hold launched, whom it reached, acknowledgments received, and remedial steps for tricky sources. Courts increasingly expect detail when spoliation fights erupt—discipline here trims risk downstream.
Topics: legal hold, duty to preserve, ESI, litigation hold, Zubulake standard, data mapping, proportional preservation, audit trail, spoliation, Right Discovery