Extract from David Steinfeld, Akshita Singhal & Lianna Vaughan’s article “eDiscovery for Small Law Firms: What You Really Need to Know”
Electronic discovery, also known as eDiscovery, is just discovery of electronically stored information (ESI). Simply put, eDiscovery is obtaining ESI from your client, sorting through it, and producing the relevant ESI to the requesting party or, conversely, requesting relevant ESI from another party.
What Is eDiscovery?
eDiscovery processes have exponentially simplified over the past 10 years. This is the result of eDiscovery software companies modifying and updating their software to keep up with the demands of ever-growing data sources and types. There are essentially four components of eDiscovery: preserving relevant data, obtaining it from your client, culling through it (usually using software), and producing it. For small law firms, the first two are arguably the most important and the most difficult.
When to Preserve Relevant ESI
The federal standard that many state courts embrace holds that a reasonable anticipation of litigation is what triggers the obligation to preserve ESI. Put differently, when your client reasonably anticipates a dispute, your client must begin preserving relevant data. Likewise, the other side to that dispute has the same obligation. A litigation hold letter documents this obligation.
Litigation Hold Notices
To be meaningful, litigation hold notices, or document preservation letters, should contain as much information as reasonably possible. This details what the recipient needs to preserve. To say “preserve everything” is not appropriate; instead, ask the recipient to preserve names, dates, and topics. Later in a dispute, the litigation hold notice may become relevant if there was a failure to preserve and the question of whether and when the other side was alerted to the dispute arises. It is a good practice to send out this notice as soon as possible to trigger the preservation obligations; however, it is noteworthy that your client has those obligations as well.