What does Preservation Mean? (7/4/2010)

For some time I’ve been considering an issue that seems to be essential in the the litigation hold process and preservation of ESI. The issue is that when a party reasonably anticipates the possibility of litigation they are under a positive duty to preserve potentially relevant ESI. But what exactly does “preservation” mean?
For some time I’ve been considering an issue that seems to be essential in the the litigation hold process and preservation of ESI. The issue is that when a party reasonably anticipates the possibility of litigation they are under a positive duty to preserve potentially relevant ESI. But what exactly does “preservation” mean? Preservation (we often assume) means that the ESI must be kept in the same form and in the same location unaltered and untouched – i.e. as it is kept in the normal course of business. But I don’t think that is always feasible. More basically, we all agree that at a minimum, preservation means that custodians must not allow potentially relevant ESI to be deleted or materially altered.

The question comes up very specifically when lawyers advise their clients to “preserve” (through the mechanism of a litigation hold notice), and the first thing clients do in response to such a notice is to go through their email, browsing and searching for potentially relevant messages, and then either print those messages or move those messages into a new folder created specifically for the litigation. The act of opening these emails, of moving them or printing them is itself problematic, because theoretically custodians should be preserving the email messages intact. The problem is that when litigation threatens, individuals have no choice but to go through their records, sometimes frantically, to ensure that they have the records that they need to instruct their lawyers appropriately. In real life this happens even before the actual preservation threshold is reached, as managers usually have a sense that litigation might arise well before counsel are retained.

Indeed, the rules in Ontario require parties to file with their statements of claim or defence any relevant documents on which they intend to rely. In order to gather these documents, the principles of maintaining ESI in its pristine format and environment, as it was kept in the normal course of business, becomes practically (and economically) impossible.