When faced with an investigation or threat of litigation, counsel’s first reaction may be to ask individual custodians to preserve in place their own documents. While this seems logical because custodians should know where their electronically stored information (ESI) are located, it is inherently risky because of the potential for spoliation or omission of relevant ESI.
Preserve in place risks:
- Preservation in place requires significant administration adding to the cost of the preservation efforts.
- Employee has a potential self-interest and intentionally deletes, omits or modifies the ESI.
- Employee has a potential self-interest and properly preserves the ESI, but opposing counsel discredits the collection anyway based on the self interest of that witness.
- Employee is too busy and uninterested in the case and ignores the preservation instructions, causing potentially relevant ESI to be lost or destroyed.
- Employee completes the preservation in a haphazard manner and accidentally omits relevant ESI.
- Employee does not understand how to properly preserve relevant ESI and accidentally deletes or modifies the evidence.
- Employee moves the ESI to another folder causing changes to important file system meta data.
- Employee misinterprets the preservation instructions and accidentally omits relevant ESI.
- Employee moves the data to a central location destroying the context of the document in regard to where it was originally stored in relation to other relevant documents.
- Preserve-in-place leaves the file on the custodian’s machine, which could be a laptop that is not under the physical control of those responsible for enforcing legal hold.
- Preserve-in-place is actually more cumbersome for the custodian; because they need to make a copy of the “preserved” file (if they have the permissions) in order to get it back into use in the regular course of business.
- Preserve-in-place, without collection, does not protect from drive crashes or loss of equipment. There is often a suspicious spike in such events once litigation commences.