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> When a party reasonably anticipates litigation, they have a duty to preserve documents and electronically stored information (ESI). This duty is codified in t
by erik_seaberg 2y ago
> When a party reasonably anticipates litigation, they have a duty to preserve documents and electronically stored information (ESI). This duty is codified in the Federal Rules of Civil Procedure (FRCP) 37(e).
I don't like this (it punishes private record keeping) but it's enforced, I believe also by state courts. Big tech companies set impractically short retention policies in general but also put some records on "litigation hold", because they know they can't refuse to comply.
- OutOfHere 2y agoYes, the legal way is to lose the device in a boating accident, so to speak. The federal government itself has routinely lost hard drives in this manner that were subject to litigation. More seriously, you're spot-on about setting a short retention policy. It's the primary rational way. I hope that people can understand when I'm playing devil's advocate when no one else will.
- ceejayoz 2y agoTL;DR: A retention policy is fine. A new retention policy the day you get a subpoena for your records is not.
- erik_seaberg 2y agoWhen you have reason to expect litigation you have to start excluding relevant docs from your normal retention policy.