Philip Favro

The summer of 2018 has been a boon for eDiscovery case law, with several courts spotlighting any number of best practices for addressing discovery issues. One such best practice is the role effective custodian interviews play in establishing a defensible preservation strategy. Fulsome custodian interviews are essential for ensuring that relevant electronically stored information (ESI) is preserved. Such interviews are characterized by exhaustive questioning on any number of topics including traditional and newer sources of ESI.

One of the most compelling eDiscovery issues facing litigants and lawyers is the prospect of sanctions for failures to preserve relevant ESI. Under Federal Rule of Civil Procedure 37(e), sanctions may not issue unless the moving party can show that the preserving party lost relevant ESI after a duty to preserve attached. The movant must also demonstrate that the preserving party neglected to take “reasonable steps” to keep the ESI and that it “cannot be restored or replaced through additional discovery.”

Social media is used by billions of people for personal and professional purposes. Our pocket-sized cell phones provide a gateway for instant connection and gratification through social media, at any time and in any place. Individuals use social media to share their achievements, family vacation photos, political views, and favorite videos. Organizations leverage social media to reach prospective consumers. Nefarious actors have even exploited social media to spread misinformation and sow distrust, with global implications.

A consistent information governance lesson that courts have emphasized for decades is the need to develop an effective records retention program. Such a program should result in the retention of information based on its value to the enterprise, together with other information that may be required to satisfy legal or regulatory retention obligations. When coupled with a data map, information retention policies provide a transparent and logical organization of company data that can benefit the enterprise in any number of ways.