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, you cannot wait until a Rule 26 conference to discuss how data was or more likely was 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, prior to the start of discovery, and even prior to 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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