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The Basics of E-Discovery: What Is Data Preservation?

March 5, 2024

Exterro’s Basics of E-Discovery Guide covers the breadth of the EDRM, as well as diving deep into topics like predictive coding, artificial intelligence, and the role of technology in e-discovery, but it would be difficult to argue that any aspect of e-discovery is more fundamental than the preservation of relevant data. After all, the goal of the legal process is to arrive at the just resolution of civil disputes. And what could be more essential than preserving the facts of the matter with the goal of understanding what happened, and therefore, what a just resolution is?

With that understanding of the importance of data preservation, this blog will try to answer some frequently asked questions about data preservation and its role in e-discovery.

What is data preservation?

Data preservation is any action you take, in anticipation of litigation, to ensure that potentially relevant electronically stored information (ESI) is not altered, modified, deleted or destroyed.

Why is it important?

Data preservation captures relevant ESI in a form that allows it to be used as evidence in a legal matter. It ensures that your organization has the ammunition it needs to assert or defend a claim.

How do you know if you should preserve ESI?

At the time you reasonably anticipate that a lawsuit could ensue, your organization should begin the data preservation process. Triggers can include things like:

  • A dispute arising from an employee separation
  • Product liability or safety issues
  • Disputes over intellectual property
  • Receipt of notice of a pending civil suit
  • An angry/threatening phone call, letter or email from someone for which you are or have done business with

What happens if you don’t preserve data?

There are consequences for not preserving data.  First of all, your organization may not be able to assert or defend a claim effectively. More importantly, when a matter proceeds through the courts, your organization may be subject to sanctions ranging from opposing party legal fees through adverse jury instructions or summary judgement if the court determines an organization acted with “intent to deprive.” 

How do you preserve data?

Data preservation can be conducted in a number of ways.  A lot of technology used today has built-in legal hold or preservation features that turn off retention or automatic deletion processes.  There is technology specifically built to preserve data, and if neither of these options are available, you can direct the custodian not to delete the data. A key step in the preservation process is issuing a legal hold, a topic that we’ll discuss at greater length in our next post in this series.

For more information on data preservation—and the rest of the e-discovery process--download the PDF of Exterro’s Basics of E-Discovery today!

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