In our adversarial justice system, litigants rely on evidence to explain their side of a dispute. Today, much of that evidence is digital. If an organization allows digital evidence to be compromised, lost, or destroyed, it may not be able to prove its case—and may even face sanctions or prosecution for spoliation of evidence.
According to the American Bar Association’s 2022 Legal Technology Survey Report, litigation teams cite full-text search, document review, and redaction as some of the most useful features of eDiscovery technology. But none of those tasks are possible if evidence hasn’t been preserved in the first place. Fortunately, legal technology can also assist with the preservation of evidence.
In this post, we’ll define preservation of evidence and explain the basics of who is responsible for preserving evidence and how the process works. We’ll also outline the most common challenges of preservation and set out a few best practices for preserving digital evidence. Finally, we’ll look at in-place data preservation, explain how it differs from traditional preservation, and introduce technology that makes it possible.
What is preservation of evidence?
Preservation of evidence is the process of saving information that may be relevant to a potential or ongoing lawsuit so that it cannot be altered, lost, or destroyed. In other words, evidence preservation is the active avoidance of spoliation.
Federal Rule of Civil Procedure (FRCP) 37(e) memorializes the common law rule that a party must take reasonable steps to preserve electronically stored information (ESI) for use in litigation. If a party fails to preserve evidence, the court can take measures to cure any prejudice to the opposing party. If the court finds that the offending party acted deliberately, it can impose spoliation sanctions by:
· presuming or instructing the jury to presume that the missing information would have been unfavorable to the party that lost possession of it,
· dismissing the action, or
· entering a default judgment against the party that caused the spoliation.
A request to preserve all evidence relevant to an anticipated or ongoing legal matter is known as a legal hold or litigation hold. A legal hold supersedes and temporarily suspends an organization’s typical retention policies.
So, how does a corporate legal team communicate the existence of a legal hold to others within its organization? That’s where preservation of evidence letters come in.
What is a preservation of evidence letter?
A preservation of evidence letter, also known as a legal hold notice or preservation notice, is a written communication that asks recipients to preserve information that may be relevant to an anticipated or pending legal matter. It may be circulated internally within an organization to ensure that it properly preserves its own evidence or sent by a party to its opponent to ensure that the opponent knows what information must be preserved.
Parties, any government agencies or organizations typically issue a preservation of evidence letter at the outset of litigation, though it may send a letter earlier if it learns of an event that may later lead to litigation. A preservation of evidence letter usually contains:
· a formal demand to preserve evidence;
· the date, time, location, and description of the underlying incident;
· a warning that failure to take other tangible evidence preservation steps may result in court sanctions;
· a request for the recipient to confirm receipt of the letter; and
· information about who to contact with questions.
The purpose of a preservation of evidence letter is to notify the recipients of a legal hold and prevent the spoliation or destruction of evidence. And spoliation can occur at all levels of an organization, so the duty to preserve evidence may be further-reaching than you would think.
Who is responsible for preservation of evidence?
Broadly speaking, a plaintiff or defendant in a lawsuit or an organization that can reasonably foresee its involvement in future litigation is responsible for preserving evidence. This duty extends to employees throughout the organization.
However, the responsibility to take affirmative steps to preserve evidence generally falls to those custodians of record and data stewards that organizations appoint to safeguard and manage data. IT departments may also be responsible for assisting with preservation efforts.
For example, if a company learns that a defect in one of its products has caused a consumer to be seriously injured, the company might reasonably anticipate that litigation will ensue. Therefore, the company must place a legal hold on all business records related to the design, manufacturing, testing, marketing, and sale of the product. The custodians, stewards, and employees who work in each of the departments that perform those activities—such as finance, marketing, and sales—are then responsible for preserving the information that they have that is relevant to the incident until the hold is lifted.
Let’s take a closer look at how the preservation of evidence process unfolds.
The process of evidence preservation for use in discovery
Preserving evidence can quickly become a monumental task, especially when an organization stores large volumes of data that numerous people regularly access and manage. A corporate legal team must follow a specific protocol to sufficiently protect data from spoliation and avoid the loss of data that may hurt the organization’s case at trial or incur court sanctions.
The process of preserving evidence includes the following steps:
1. Triggering event: An organization’s legal team learns of an event that could lead to litigation, receives a preservation letter, prepares to file a complaint, or discovers that the organization has been named in a lawsuit.
2. Analysis: The legal team works with data custodians, data stewards, and IT staff to determine what information is important to the investigation or litigation and who is responsible for handling the data that contains that information.
3. Legal hold notice: The legal team drafts a preservation of evidence letter and sends it to each responsible party.
4. Acknowledgment: The responsible parties acknowledge that they have received the preservation of evidence letter and the legal team reaches out to any responsible parties who have not confirmed their receipt of the letter.
5. Preservation: The recipients take reasonable steps to preserve the data.
6. Reminders: The legal team periodically reminds responsible parties that the legal hold is still in effect until the matter is resolved or the statute of limitations to file a complaint has passed.
7. Release of legal hold: The legal team notifies the responsible parties once the legal matter is resolved, releasing the legal hold and allowing the organization’s regular retention policies to resume.
While the process is easy to understand in the abstract, it can present numerous difficulties in practice.
The most common challenges of preservation
Legal teams have their work cut out for them when it comes to preserving digital evidence in today’s corporate environment.
Organizations are storing increasingly large volumes of data, and legal teams can no longer identify all relevant information by simply searching file folders or physical hard drives. As of 2022, over 60% of corporate data was stored in the cloud—but that data isn’t all in one place. Instead, most organizations now store data across multiple cloud-based as well as onsite repositories, which makes it hard to identify relevant information using traditional means.
With data dispersed across so many locations, it can be difficult to identify the right custodians and hold them accountable. Issuing preservation of evidence letters, tracking who has responded to such letters, and providing reminders and updates can be tedious, especially for legal teams who still manage that process manually.
As if the volume and dispersion nature of data weren’t enough to contend with, much of that data is of different types and formats—including email threads, Slack channels, online project notes, photos, and videos. These types of data sets can be harder to search than basic documents and often must be preserved in their native formats to satisfy eDiscovery requirements.
How can corporate legal teams streamline the preservation process in the face of these challenges?
3 best practices to efficiently preserve digital evidence
The best way to preserve digital evidence depends on the organization and situation. But generally speaking, the following best practices can help corporate legal teams improve their preservation workflows.
1. Automate as many steps as possible.
It’s no longer necessary to manually execute each step of the legal hold process to ensure accuracy. Modern technology can help legal teams locate relevant information, identify custodians, and instantly issue and monitor legal holds. By automating each of these steps, legal teams can save time on preservation and focus their efforts on other important tasks, reducing their organizations’ overall reliance on outside counsel.
2. Don’t go overboard.
FRCP 37(e) requires only that parties take reasonable steps to preserve ESI, not that they take every step imaginable. Legal teams must resist the temptation to go above and beyond and control the scope of each discovery matter. If they keep track of each step they take and their justification for it, they can confidently defend their choices if necessary.
3. Try a new approach
New developments happen in law and the eDiscovery world all the time. Stay current on what’s happening in legal technology and don’t be afraid to try something different. For example, in-place data preservation or in-place preservation (IPP) is a novel approach that helps prevent spoliation while keeping organizations’ business interests in mind.
What is in-place preservation (IPP)?
Generally speaking, IPP is the process of preserving data in the location where it originated or where the organization uses it, as opposed to collecting it in an archive or other location. In the legal hold context, the goal of IPP is to automatically secure data to prevent its alteration or deletion without disrupting business, relying on employees to follow legal hold instructions, or incurring the expenses of collection and separate data storage.
Whereas traditional preservation often bleeds into collection, requiring the physical or digital relocation of applicable evidence to a new location for its protection, IPP focuses on locking down data across multiple data sources at once without collecting it. For example, preserving email and messaging data within apps such as Microsoft Outlook and Teams allows organizations to rapidly safeguard potentially discoverable data.
How IPP improves eDiscovery workflows
IPP optimizes corporate legal teams’ eDiscovery workflows by streamlining the way organizations preserve data. IPP is beneficial because it:
· prevents inadvertent and intentional spoliation by swiftly securing data from a remote source, making it particularly advantageous where a litigation matter may tempt an employee to tamper with evidence;
· sidesteps storage costs by protecting data where it lives instead of housing it separately; and
· allows organizations to continue with their daily operations uninterrupted, which is especially helpful where employees need daily access to platforms in which relevant information is stored.
Legal teams can realize all of these benefits and more by investing in technology that enables IPP.
Efficiently preserve data in place by leveraging Live EDA
With the recent explosion of digital evidence, technology is essential to improving eDiscovery workflows and effectively preserving evidence. By investing in the right tools, organizations can save time and money and avoid the headaches associated with spoliation of evidence.
Live Early Data Assessment (Live EDA) is IPRO’s proven solution for efficient IPP. Live EDA allows users to view and analyze data across multiple sources so they can identify relevant information and custodians. It also allows users to instantly issue, track, and manage legal holds so they can preserve important information quickly and easily. Plus, it tracks user activity and generates reports so legal teams can defend their legal hold process when necessary.
With the help of Live EDA, corporate legal teams can simplify their eDiscovery workflows and save their organizations money by defensibly preserving evidence in house.