Practice Guide: ED102 – In the Beginning: Identification and Preservation Fundamentals
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Matthew Verga is an attorney, consultant, and eDiscovery expert proficient at leveraging his legal experience, his technical knowledge, and his communication skills to make complex eDiscovery topics accessible to diverse audiences. A fifteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level, from the project trenches to enterprise program design. As Director of Education for Consilio, he leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.
Summary
Identification and preservation are the first and most fundamental phases of an electronic discovery effort. The duty of (identification and) preservation is a foundational concept in our legal system that grows out of the common law concept of “spoliation,” which is nearly 300 years old. Essentially, if courts exist to make determinations about disputed facts, and if the trier of fact must make those determinations using the available evidence, then no litigant should be allowed to gain advantage in those determinations by hiding or destroying relevant evidence before the trier of fact can consider it.
As we will see in numerous contexts, ESI spoliation remains a frequent issue – particularly in the gray area where new devices, applications, or services are transitioning from niche adoption to mainstream use. Hence the importance of these phases in an eDiscovery effort: almost every other type of failure can be fixed with adequate time and money, but once unique, relevant ESI is gone, it’s gone. In this free Practice Guide, Consilio Director of Education Matthew Verga, Esq., reviews the fundamentals practitioners need to know about identification and preservation to fulfill this duty.
In this Practice Guide
- Triggers and Applicable Rules
- The Role of Legal Holds
- Common Pitfalls
Key Insights
- The Very Broad Potential Scope
- The Importance of Imagination and Investigation
- Key Steps Beyond Legal Holds
Summary
Identification and preservation are the first and most fundamental phases of an electronic discovery effort. The duty of (identification and) preservation is a foundational concept in our legal system that grows out of the common law concept of “spoliation,” which is nearly 300 years old. Essentially, if courts exist to make determinations about disputed facts, and if the trier of fact must make those determinations using the available evidence, then no litigant should be allowed to gain advantage in those determinations by hiding or destroying relevant evidence before the trier of fact can consider it.
As we will see in numerous contexts, ESI spoliation remains a frequent issue – particularly in the gray area where new devices, applications, or services are transitioning from niche adoption to mainstream use. Hence the importance of these phases in an eDiscovery effort: almost every other type of failure can be fixed with adequate time and money, but once unique, relevant ESI is gone, it’s gone. In this free Practice Guide, Consilio Director of Education Matthew Verga, Esq., reviews the fundamentals practitioners need to know about identification and preservation to fulfill this duty.
In this Practice Guide
- Triggers and Applicable Rules
- The Role of Legal Holds
- Common Pitfalls
Key Insights
- The Very Broad Potential Scope
- The Importance of Imagination and Investigation
- Key Steps Beyond Legal Holds
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