Preservation starts before discovery does
The duty to preserve relevant information usually arises once litigation is reasonably anticipated, which can be well before a complaint is filed. That typically means a written litigation hold to the people who hold relevant data and a pause on automatic deletion, including chat retention settings and email cleanup routines. Losing ESI after that point can lead to sanctions, or to an instruction allowing the factfinder to assume the missing material was unfavorable, depending on the circumstances and the court. Do not wipe phones, replace laptops, or close accounts that may matter without first talking to counsel. If a device or account may have been compromised, the safer course is usually to leave it in its current state and cut it off from the network rather than shut it down or reset it.
Mapping where the data actually lives
Before requests arrive, it helps to know which systems hold what: company email, personal phones used for work, messaging platforms, collaboration tools, cloud storage, and databases. Former employees' accounts and backup media often matter more than expected. Metadata, such as who created a file and when it changed, can be as important as the content, so copies dragged onto a thumb drive may not be enough. Collection is usually done in a way that keeps metadata intact and records how the data was handled. Employees should keep their own messages but ask before moving company files anywhere, including to personal accounts.
What the sides negotiate
Parties in electronically stored information discovery commonly negotiate whose data will be searched, the date ranges, the search terms or review technology, and the format of production. Federal courts and New York's Commercial Division in particular expect requests to be proportional to the needs of the case, and disputes over burden and cost are routine. Privileged material needs a review process and an agreement for returning anything produced by mistake. In a first meeting we identify the likely sources, check whether a hold is in place and complete, and estimate the scale of collection and review. That early map often drives the cost of the case as much as any motion does.
