Litigation 101 for eDiscovery Tech Professionals: Preserving Relevant Documents

January 14, 2013

By Jane Gennarelli

** This blog series is intended to introduce new eDiscovery professionals to the litigation process and litigation terminology. Click here, here, here, here, here, here, here, here, here, here, here and here to go to the first twelve posts in the series.**

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In last week’s post in this series, we covered the first phase of the Electronic Discovery Reference Model:  Information Management.  A key part of that for most companies is implementing a document retention and destruction program – that is, a program for routinely assessing and purging documents from an organization’s electronic and paper archives.  Organizations develop and implement rules for deleting or destroying documents once they have reached a certain age, unless they are protected by other rules established by the organization.  This process is usually automated, so documents are routinely and automatically deleted from the system.  Parties in a lawsuit, however, are legally bound to preserve documents that might be relevant in the case. So processes need to be in place to suspend routine destruction of potentially responsive materials.  Attorneys initiate the preservation process by implementing a litigation hold.

The obligation to preserve documents is triggered as soon as an organization learns of pending or imminent litigation, or if it has reason to believe that a lawsuit may be filed.  If, for example, a disgruntled terminated employee says “This is discrimination and I’m going to talk to a lawyer”, the organization has reason to expect a lawsuit and the obligation to preserve documents is triggered -- even though a lawsuit has not yet been filed.  From that point until the matter is resolved, the organization needs to preserve all documents that might be relevant in the case.

Here are the general steps that attorneys usually take to preserve potentially responsive documents:

1. Before potentially responsive documents can be preserved, they must be located. The very first step, therefore, is to identify sources.  This is the Identification phase of the Electronic Discovery Reference Model. Sources might include individuals, business units, IT systems, mobile devices and archives of paper. Attorneys usually identify sources by interviewing key individuals who may have relevant materials, interviewing IT and records management personnel, and reviewing records management / IT documents that include information on data mapping and storage.
2. Attorneys initiate a litigation hold by sending a notification to custodians of potentially relevant documents.  This includes notifying both the individuals who are likely to have relevant documents and IT / records management personnel who are responsible for document archives and for document retention and destruction programs.
3. Attorneys should play an active role in verifying receipt of and understanding of the preservation notices, and in monitoring preservation activities.  It’s not enough to send the notifications and assume that preservation is being done.  In at least one landmark case – Zubulake v UBS Warburg – counsel were sanctioned for failing to take affirmative steps to monitor compliance with preservation requirements.

In the next posts in the series, we’ll talk a bit more about some of the EDRM steps and how they fit into the bigger litigation picture.  Please let us know if there are specific litigation topics that you’d like to see covered in this blog series.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.