I did a free webcast today for OLP, billed as “Top Tips for Preservation.” If you missed it, they will make it available to members online. Although I spent much of my time addressing challenges unique to preservation of mobile devices like iPhones and tablets, I was faithful to the title and shared nine tips I termed “Preservation Platitudes.” None break new ground, but I hope at least a few count as sensible advice:
Be Prepared to Preserve
READY: Have a preservation plan.
SET: Invest in preservation readiness.
GO: Do something. Do it now.
You need to have an action plan at hand for any case that comes in. There are sources of information and preservation obligations that cut across all matters and apply to those on both sides of the V. If you wait until the case comes in to develop the framework of a defensible preservation plan, you subject the client to needless risk. Clients don’t pay us to learn on their nickel. They pay us to know–or at least to know how to get started.
Preservation readiness means having strategies and resources to draw on, so as to be able to hit the ground running. It might be training someone in IT to be competent in forensically sound imaging techniques and chain-of-custody documentation. Or, it could be having established relationships with IT and service providers. A professional knows who to call and has a sound sense of what it will cost.
Many failed preservation efforts come about because someone dithered. They hoped that the case would settle. They assumed it was someone else’s job. They failed to act when action could have saved the day and lowered the cost considerably. Do something. Ideally, the right thing.
Focus on the Fragile First
Whether it’s mobile devices, e-mail purge settings, departing employees or equipment replacement, to name just a few, there are always sources of ESI notably more prone to spoliation. Fix them first.
Scrap the Omnibus Hold Directive
Understand custodians’ and IT’s different points of view:
IT gets technology, not content. Users get content, not technology.
So, don’t direct a user to preserve media or IT to preserve content.
Make it PERSONAL for KEY custodians
Lawyers are prone to slavishly rely on forms. Forms are not sacred texts. They’re simply the work of someone no smarter than you who took the time to think about what a document should say. If you’re sending the same litigation hold directive to IT that you send to everybody else, you’re not doing your job very well. If you fail to tailor the hold directive to the unique roles and data collections of key custodians, you are inviting them to assume that preservation is someone else’s responsibility. Take time to identify particular things key custodians must do, then tell them to do it. Make them see you’re talking to THEM.
Work Well with IT
Respect IT: They are as smart as you are and just as busy.
GO to the data: ASK about the tapes in the box. ASK about that charger and cable.
Ask twice: The first time, IT will say whatever it takes to make you leave.
Try: “It would help us if you had X,” NOT, “You don’t have X, right?”
Trust but Verify
Backstop custodial preservation with objective preservation action.
Sure the dealer is honest; but, cut the cards anyway. Sure the employees are trustworthy and diligent; but, you still must plan for human frailty. So, don’t rely exclusively upon custodial-directed preservation. Guard against foreseeable failures of skill, diligence or character by, e.g., arranging for IT to quietly put a hold on the mail or copy the network share of key custodians.
The answer to the conundrum of whether to implement a custodial legal hold or a systemic legal hold is that you typically must do both. You must secure the insight and effort of key custodians; but, it’s folly to rely upon that alone.
Remember the Big Four:
Local Storage, Network Shares, Servers and Databases.
For the Big Six: add Cloud and Mobile sources
The most important preservation action to communicate is inaction.
The preservation obligation may attach long before a lawsuit; but, frequently, you do know who’s on the other side and could talk things over with them. The reason we aren’t more forthcoming with opponents is that we fear that by exposing our preservation efforts, they will find fault or demand we do more. That’s not something to fear. The best time to find out you missed something or need to broaden your scope of preservation is when you can still do something about it, quickly and cheaply.
Above all, tell the other side what you’re NOT going to preserve or search. Use good faith disclosure to shift the onus to your opponent to either object and promptly seek relief or accept that what you’ve done is reasonable.
ASK. CHECK. LOOK. TEST. ASK AGAIN.
That “perfection” isn’t the standard doesn’t mean that “lousy” is.
It’s better to do ten custodians 90% right than 90 custodians 10% right.
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