In this FRCP visual guide, you get reasonable preservation steps from Judge Facciola, questions to ask for determining reasonableness, and often-forgotten preservation considerations. Read this visual guide from Exterro to FRCP Rule 37(e) and learn the following: • 4 Keys to Creating Reasonable Preservation Steps from Judge Facciola • 7 Questions to Ask for Determining Reasonableness, • 4 Often-Forgotten Preservation Considerations.

1. VISUAL GUIDE
AN
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How to Create a
REASONABLE
Preservation Process
UNDER RULE 37(e)
Judge Facciola’s
Keys to Creating
Reasonable
Preservation Steps
Often-Forgotten
Preservation
Considerations
Questions
for Determining
Reasonable Steps
featuring
David Yerich
Director of eDiscovery
UnitedHealth Group
Hon. John M. Facciola (Ret.)
United States Magistrate Judge
D.C. District Court
&
FRCP 37(e) “recognizes that ‘reasonable steps’ to
preserve suffice; it does not call for perfection.”
— Committee Notes
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3
2
Judge Facciola’s
Keys to Creating Reasonable
Preservation Steps
Often-Forgotten
Preservation Considerations
Questions for Determining
Reasonable Steps
Information Governance
A solid and well-reasoned record
retention policy that has compliance
measures in place for the whole
company puts you halfway (or more)
to convincing the court you’ve taken
reasonable steps.
Structured data and databases
Third party holders of data that is subject
to your access
Cross border data processing
and transfers
Regional privacy laws
Document Everything
Document everything so you can go
into court and say “we did everything
in our power to prevent [ESI loss] from
occurring” rather than “here’s a box
of backup tapes, but we have no idea
what’s on them.”
Be Proactive,
Not Reactive
All too many lawyers are called in like the
plumber, only when the sink backs up,
and confront the reality that there is no
rhyme or reason as to why certain things
have been kept and certain things have
been thrown out. Legal and IT must work
together to ensure data can be preserved
in a defensible, efficient manner.
Did you circulate a legal hold in a
timely fashion?
Were the legal holds distributed to
custodians/data sources (fileshares,
IT admins, etc.) who may hold
potentially responsive data?
Did you send out reminders/
re-issuance hold notices?
When new employees arrived in
the company, were they put on
legal hold?
Proportionality is
Reasonableness
If you’re blindly keeping everything,
you’re defeating one of the purposes
of Rule 26. Proportionality should be
applied to each phase of the e-discovery
process including preservation activities.
Just saving everything is cutting your
throat on a good rug.
Once litigation has been reasonably anticipated, ask these
questions to determine if reasonable steps have been taken:
Reasonable preservation steps include remembering to check and
potentially preserve data from these sources:
When employees on legal hold
depart the company, was their data
preserved?
For key custodians, have you
taken relevant data and put it in a
separate place where it cannot be
disposed of by users?
Did you suspend document
retention policies applying to
relevant data sources?
In order to do this in a way that doesn’t cripple the
enterprise, you have to think through these steps
and make them part of your planning process.
— David Yerich
“ ”
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