Preservation of ESI is complex and there are several preservation pitfalls which can occur. Cimplifi discusses how to avoid them here!

In their post titled (wait for it!) Know When to Hold Em: Preservation Pitfalls and How to Avoid Them (available here), Cimplifi discusses that while preserving ESI is one of the most fundamental obligations in litigation and investigations, many organizations – even sophisticated organizations – make mistakes that lead to preservation failures that open the door to allegations of spoliation, sanctions, and even reputational damage. The Federal Rules of Civil Procedure—particularly Rule 37(e)—make clear that parties must take “reasonable steps” to preserve relevant ESI once litigation is reasonably anticipated. But what constitutes “reasonable” depends heavily on execution.

Across industries, four categories of preservation failures appear most frequently. One of the most common and consequential preservation failures is simply waiting too long to issue a legal hold. Organizations may underestimate how early preservation obligations arise. The duty to preserve does not necessarily begin when a complaint is filed; instead, it begins when litigation becomes “reasonably anticipated”. That trigger may be an internal complaint, a demand letter, a regulatory inquiry, a serious incident, or even escalating business negotiations that show signs of imminent dispute.

So, what are the other three categories of preservation failures? And What can you do to avoid these common preservation failures? Find out here, it’s only one click! Failing to do so would be a preservation pitfall! 😉

So, what do you think? How is your organization managing legal holds? Please share any comments you might have or if you’d like to know more about a particular topic.

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