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Three Tips for Preserving Electronic Evidence

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By William Vogeler, Esq. on December 16, 2016 5:55 AM

Everybody knows discovery -- including electronic discovery -- can be a virtual hole into which many lawyers have disappeared and for which many clients have paid dearly. But if there is a necessary evil in modern law (besides opposing counsel) it is the need to preserve electronic evidence.

So here are three obligatory tips, linked to some icebergs of information about eDiscovery.

1. Save This Link: eDiscovery Preservation: Legal Requirements

Part of FindLaw's Legal Technology resources, this article provides a general overview of e-discovery preservation. It reviews the general axiom in most common law standards that the duty to preserve electronically stored information (or any potentially relevant evidence) attaches when a party reasonably foresees that the information may be relevant to future litigation -- and how that plays out in practice.

2. Save That Data: Record Retention and Destruction

This 125-page summary published by the ABA, is a virtual treatise on preserving records. The report, compiled from resources and practitioners around the country, emphasized corporate compliance, records management and forensics case law. Although it was published more than 10 years ago, it lays a foundation for best practices. With regular updates on e-discovery, the ABA offers endless tips on preserving electronic evidence.

3. Save Your Client: Preparing for E-Discovery, Step Three: Preservation of Evidence

Writing for the Lawyerist, Jeff Kerr says there are "no easy answers" when it comes to preserving electronic evidence. But courts can and will impose stiff penalties on parties and counsel who fail to answer though questions in discovery.

If you have a plan, "you'll be better off than the many lawyers who seem never to think of digital preservation until the other side starts talking about spoliation," he says.

So there you go, three tips on preserving e-evidence. If only there weren't icebergs below.

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