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How Law Firm Help the Client to Preserve Evidence regarding Electronic Information or Data

Q: Does outside counsel now need to help the client to identify, preserve, collect and produce potentially relevant information?

A: Yes. In the past, outside counsel historically hold the view that it is their client’s duty to preserve evidences. But now, with some new precedents, judges challenge outside counsel letting their client preserve the evidence, especially in some case involving electronic information and data. Judges require that outside counsel should assist their client in preserving evidence.

Q: Why judge require the involvement by outside counsel with the preservation of evidence?

A: According to judges, the failure by outside counsel to supervise the evidence preservation process did not meet the standard for a litigation hold, and it is not acceptable if outside counsel rely on the client’s employee to search and select what the employee believed to be responsive records without any supervision from outside counsel.

Q: How outside counsel help the client to preserve evidence regarding electronic information and data?

A: according to published guidelines, outside counsel should assist their clients in preserving the evidence as follows: 1) evaluate the client’s capabilities. Not each client has been experienced enough in dealing with litigation matter. Then outside counsel should assume their client to be an fresh people in litigation matters and should actively help the client to preserve evidence; 2) determine the scope of preservation efforts. Outside counsel should determine the fine line between “enough” and “too much” when it comes to preservation efforts and any associated costs. It is important for outside counsel to identify what information is potentially relevant to the particular matter at issue, where it resides, and who has control over it; 3) document rigorously. Outside counsel should carefully note what actions are being taken and why, which could show the court a good faith effort which was made using a repeatable, defensible process; and 4) leverage technology. Outside counsel should use information technology in preservation process. New New software programs are available to automate the preservation workflow and enable inside and outside legal teams to collaborate seamlessly and have real-time information on the progress of preservation.


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