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Back to eDiscovery Basics: Are Your Legal Hold and Preservation Processes Subject to Discovery?

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In the realm of litigation, the management of electronically stored information (ESI) is a pivotal component that can significantly influence the trajectory and outcome of a case. The recent ruling in Doe LS 340 v. Uber Technologies, Inc., delivered by the Northern District of California, provides a comprehensive look into the stringent requirements for ESI preservation under the Federal Rules of Civil Procedure. This decision highlights the meticulous level of detail that courts may require from parties regarding their legal hold processes and ESI management strategies, especially in complex litigation scenarios like multi-district litigation (MDL).

Case Background:

The lawsuit stems from allegations against Uber, where plaintiffs claimed that inadequate safety measures led to incidents of sexual assault by Uber drivers. Central to the case was whether Uber had fulfilled its duty to preserve relevant ESI that could potentially substantiate the plaintiffs’ claims. The Court’s scrutiny of Uber’s preservation practices underscores the complex legal obligations companies face in the age where volumes of ESI exist. .

Court’s Findings and Orders:

Judge Lisa Cisneros’ thorough analysis addressed several key aspects of ESI preservation:

  • Transparency in Legal Holds: Uber was ordered to provide explicit details about its litigation holds, including the names, job titles, dates of employment of those who received the holds, and the specifics of the associated claims or litigation.
  • Comprehensive Disclosure of ESI Sources: Relying on the checklist from the Northern District of California, the Court compelled Uber to disclose both custodial and non-custodial sources of ESI, detailing the types of information stored, their uses, and the timing of their preservation.
  • Rejection of Overbroad Preservation Requests: While the Court emphasized thoroughness in disclosure, it also highlighted the importance of proportionality, and rejected plaintiff’s request to have Uber suspend its document retention party for all employees as being overbroad when auto-delete had been turned off for thousands of employees on hold.  

Key Takeaways:

This ruling serves as a crucial reminder of the evolving standards in ediscovery, in all types of matters. . Here are some actionable takeaways for litigation professionals:

  • Precision in Legal Holds: Legal professionals must ensure that legal holds are precisely executed and that each step is documented.. This includes not only who is being held but also the specific reasons why, down to the particulars of the related litigation or claims.
  • Depth of ESI Disclosure: The decision, like ones before it, requires extensive disclosure of both custodial and non-custodial data. arties should be prepared to reveal detailed information about the sources of ESI, including when and how each type of data is preserved and used. This extends to non-custodial data, which might not be directly controlled by individual custodians but still contains relevant information.
  • Proportionality is Paramount: While thoroughness in preserving and disclosing ESI is crucial, it must also be balanced with proportionality. Requests for preservation and disclosure must be closely tailored to the needs of the case to avoid imposing undue burdens on the parties involved.
  • Compliance with Court Directives: Adhering to court orders regarding ESI management is non-negotiable. This case illustrates that courts are paying close attention to how parties manage their ESI and will not hesitate to compel further action if initial efforts are deemed insufficient.
  • Strategic Implications: For larger organizations, like Uber, which face a high volume of litigation, the decision underscores the need for a strategic approach to document management and litigation preparedness. This includes having robust systems in place to quickly identify relevant ESI and implement comprehensive legal holds.


The Doe LS 340 v. Uber Technologies, Inc. ruling offers excellent guidance for litigation professionals, highlighting the critical importance of having the appropriate knowledgeable professionals in place to identify, preserve, collect and document the wide range of sources of ESI that can be implicated in a matter. . As courts continue to demand higher standards of transparency and specificity in ediscovery, it is imperative for legal teams to enhance their practices to meet these expectations efficiently. This decision not only sets a precedent but also serves as a guideline for navigating the complex landscape of legal holds and ESI management in high-stakes litigation.

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Kelly Twigger
Kelly Twigger is a practicing attorney, software developer, consultant, writer, and speaker on issues in electronic discovery, the development and implementation of legal technology, and how to effectively use data in planning for and during litigation.

She is a co-author of Electronic Discovery and Records and Information Management, and host of Case of the Week at eDiscovery Assistant. As Principal at ESI Attorneys, Kelly manages the boutique eDiscovery and information law firm that acts as operational business partners with its clients to advise law firms, corporations, and municipalities on all areas of electronic information including eDiscovery, privacy, cybersecurity, and information governance.

Kelly is also the CEO of eDiscovery Assistant — a SaaS-based practical resource for litigators handling eDiscovery — that curates discovery decisions, rules, and additional content. She is developing an online academy to provide on-demand education for lawyers and legal support professionals to stay abreast of changes in the law and technology that affect litigation and clients’ obligations to respond.

You can reach Kelly at [email protected], join her Facebook community group at Let’s Talk eDiscovery, or connect with her on Twitter @kellytwigger.

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