In an article written by Beth S. Rose and Charles J. Falletta that appeared in the May 17 New Jersey Law Journal, the authors summarized the mistakes for which Judge Shira A. Scheindlin penalized The Pension Committee of the University of Montreal Pension Plan. The ruling focused largely on the improper preservation and collection of documents and data. Perhaps if the committee had taken an alternate approach to how they were preserving and collecting data, they could have avoided the sanctions.
Preservation or hold notices are common practice when attempting to secure electronically stored information (ESI) that may be potential evidence in a case. In order to prevent ESI spoliation, the legal team may issue a letter specifying that files and e-mail should not be destroyed and should be preserved in a reasonable manner. The objective of this preservation notice is to ensure that data not be modified, deleted or changed in any manner. As the data is still on the live networks, e-mail server or even a user’s desktop, modification of the data is a likely possibility, especially for those who know where the “smoking gun” is buried. Spoliation of data is always possible when dealing with online content that users still have access to.
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