Preservation starts before the lawsuit
The duty to preserve relevant information generally begins when litigation is reasonably anticipated, which can be well before a complaint is served. In practice that usually means a written legal hold and suspending automatic deletion for the right accounts, and it can reach work conversations on personal phones or messaging apps. Ephemeral messaging tools draw particular scrutiny. In federal court, the harshest sanctions for lost electronic information generally require a finding that a party intended to deprive the other side of it, while New York state courts apply their own standard, which does not always demand the same showing.
Negotiating scope
Electronic discovery is shaped more by negotiation between the parties than by any single rule. Custodians, date ranges, search terms, data sources, and production formats are typically discussed early, and the federal rules expect discovery to be proportional to the needs of the case. Technology-assisted review, in which software trained by human reviewers ranks documents for relevance, has been accepted by courts and can reduce cost in large matters. Agreements about inadvertently produced privileged material, often entered as a court order, protect against waiver when large volumes move quickly. Disputes the parties cannot resolve go to the judge, who expects to see that they genuinely tried.
Getting the process right early
Ediscovery costs are largely set in the first months of a case. We help clients identify where their data actually lives, issue holds that reach the right people, and choose vendors and review methods proportionate to the matter. When the other side's production looks incomplete, we work through what can be requested and what a court will realistically order. Where a preservation problem has already occurred, the priority is to understand it fully and address it candidly before it surfaces in a deposition. Collection from phones and cloud accounts is often handled by a forensic vendor, so that how the data was gathered can be explained later.
