The first (and most important) rule of e-discovery in nearly all cases is to preserve electronically-stored information (ESI) correctly. If a party preserves ESI properly, most other missteps can be corrected. To comply with the duty to preserve, a party must issue and enforce proper litigation holds (and do so in a timely fashion) and suspend procedures or processes that would otherwise result in systematic destruction of relevant ESI. The minimum requirements for a proper litigation hold include:
- Issuing a written direction to preserve all relevant records (courts no longer consider oral communications adequate);
- Avoiding reliance on individual recipients to either define or search for what is relevant. Rather, the preservation notice should focus on broad categories of relevant information, all of which must be retained to allow for searching/collection/production later.
- Sending the hold to everyone who has potentially relevant information (but especially “key players,” i.e., those who had the most contact with the subject of the lawsuit); and
- Suspending any automatic data destruction protocols, including the “auto-delete” function of most e-mail systems, or otherwise providing for the data’s retention.
It is important to institute the hold in a timely fashion. The duty to preserve arises when litigation is “reasonably foreseeable.” Most obviously, of course, this means that the duty arises when someone threatens to sue you or your company. In practice, however, the duty to preserve may be triggered by a variety of events that could put a reasonable person on notice that he or she may be the target of legal action, e.g., threats of litigation.
One recurring issue in class and collective action cases is the scope of an employer’s preservation efforts prior to certification. Remember that the duty to preserve evidence is broader than the duty to produce. Absent an appropriate agreement, stipulation, or court order, it is risky to not take pre-certification efforts directed at evidence that would clearly be relevant if the case is certified. A court is unlikely to be sympathetic to a company’s position that it was “banking on” defeating certification or any argument that the case was not certified at the time the company’s preservation strategy was finalized. That does not mean that precertification preservation efforts necessarily need be as extensive as they should be post-certification. A defendant is obligated to undertake only reasonable preservation efforts under all the circumstances. The plaintiffs’ claim of entitlement to certification is an important factor in the preservation decision – but it is not the only factor. Employers should work closely with their counsel to craft a reasonable, proportional approach that accounts for the plaintiffs’ allegations and the relative costs and feasibility of global preservation.
One potentially useful tactic in trying to limit the burden of precertification preservation is to tell opposing counsel your view of the proper scope of preservation and, if opposing counsel objects, propose sharing the costs of any additional preservation efforts. Typically, the other side will not take you up on the offer. This puts the opposing party in the awkward position of trying to argue that the broader preservation efforts were important, but not so much that they would spend their own money to do so.
The best advice regarding e-discovery issues in class and collective actions – concerning preservation issues or otherwise – is to be proactive and willing to work with the other side. Take an early, hard look at what ESI might be relevant and plan accordingly. Courts expect counsel and the parties to cooperate with one another. Don’t let the court conclude that you are being the unreasonable one. By “giving” a little, you may gain a lot of equity and goodwill with the court, which may ultimately reduce the overall cost of discovery.