Parties have an obligation to preserve relevant ESI from ephemeral messaging applications and other digital age communication apps and information sources. Even though ESI from these applications is dynamic and thus easily subject to modification or deletion, parties must take reasonable steps to retain such information after a duty to preserve triggers. Failure to take such steps can leave a responding party—plaintiff or defendant—vulnerable to data loss and sanctions.
Litigation readiness for organizations generally begins with basic ESI preservation steps including litigation holds, relevant source checklists, and follow up steps with custodians. In some instances, however, the basics may not be enough. Given the frequency of data loss from custodial and non-custodial sources, companies should also consider incorporating remediation strategies into their approach to preservation to better ensure defensibility.