We don’t really know what this pic shows,
but it seems to concern e-discovery.

Blawgletter just finished reading an excellent overview of e-discovery.  It takes as its point of departure the new federal rules that took effect December 1, 2006. The ABA’s Section of Litigation compiled the survey for the benefit of Section members, including Blawgletter. They call it e-DISCOVERY.   We respectfully commend it to any who haven’t quite mastered the subject — a group that Blawgletter suspects includes just about everybody.

We looked in vain though for guidance on what to do about electronic documents that come into existence after a client expects litigation. Presumably one needn’t preserve every post-expectation-of-litigation e-document or even changes to pre-expectation e-documents. Otherwise, Blawgletter imagines, the client’s business will morph into a document-preservation enterprise with cash flow that slows to a trickle.

We get the notion of securing e-documents soon after the magic moment when the fear of a lawsuit matures into a specific reason to think one will soon follow.  So please assume with Blawgletter that we’ve already preserved all electronic data extant at the magic moment so that we have it available in pristine condition should we need to review or produce it.  Must we, in addition, go back every day and make another copy of active servers (for example) that the client uses in its ongoing business, just so that we also keep each new file and iteration of pre-existing ones?

Surely not.  But we’d feel better if someone addressed the question directly.  Any help, gentle readers?

Barry Barnett

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