All parties to a lawsuit are supposed to preserve documents and data once they reasonably anticipate litigation. We all know that does not always happen. Hackers and data thieves try to cover their tracks, intentionally destroying relevant data. But sometimes it’s a crime of negligence, allowing valuable data to be written over in the ordinary course of business operations. When evidence is in genuine danger of being lost, one cannot wait until a Rule 26 conference to discuss how data were or more likely were not preserved.
Unfortunately, discovery often begins months, or even years, after a complaint is filed. There is a better way. Steps can be taken to preserve data, before the start of discovery and even before the commencement of litigation. Rule 26 may begin with a general prohibition against expedited discovery, but it in fact allows exceptions “authorized…by court order.” Because Rule 26(d)(1) does not outline the standard to allow these exceptions, more than 20 different standards have been developed over the years.
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