When electronically stored information (ESI) is lost, the fight often shifts from the merits to the adequacy of the litigation hold. This article draws on the Federal Rules of Civil Procedure, the Advisory Committee Notes, and the District of Maryland's ESI Principles to explain what a preserving party should document, where the burden sits, and how a neutral evaluates preservation disputes. It is educational content from a discovery neutral, not legal advice.
Preservation Begins Early and Is Governed by Proportionality
A defensible litigation hold starts with recognizing that ESI preservation is a legal obligation to be addressed at the outset of a matter. The District of Maryland's ESI Principles direct that parties "should take measures to preserve ESI as required by law" and "should discuss preservation of ESI as early in the litigation as feasible," with those discussions continuing "periodically as the case and issues evolve." A hold is therefore not a one-time event but an ongoing process that must adapt as issues and custodians change.
Critically, the scope of a hold is measured against proportionality, not perfection. The Principles instruct that "in determining what ESI to preserve, parties should apply the proportionality standard," and that parties "should discuss limiting the preservation, search, review, and production requirements" by identifying sources that "can be excluded from preservation and production because they are marginally relevant or not reasonably accessible." A hold that thoughtfully documents why certain sources were preserved and others excluded reflects the reasonableness a court expects.
Cooperation and Early Information Exchange Build the Record
Holds that withstand later scrutiny are usually built on cooperation rather than unilateral guesswork. The District of Maryland "recognizes the principles of The Sedona Conference® Cooperation Proclamation" and "expects cooperation on issues relating to the preservation, collection, search, review, production, integrity, and authentication of ESI," emphasizing "the importance, of cooperative exchanges of information about ESI at the earliest stages of litigation."
That early exchange has practical value for a preservation record. The Principles suggest parties consider exchanging "a data map," information about "document management, mail, and messaging systems," "backup and recovery routines, including backup media rotation practices," and "organizational charts for key custodians of ESI and relevant policies, including those relating to computer usage, document management, ESI, or document retention or destruction." A party that has mapped its systems and identified custodians early is far better positioned to demonstrate that its hold reached the right places.
Targeting the Hold: Preservation Notices and Custodian Consultation
A litigation hold should be precise. Although the ESI Principles make clear that "parties are not required to use preservation notices to notify an opposing party of a preservation obligation," they provide that if a party does so, "the notice should apply the proportionality standard" and "be reasonably targeted, clear, complete, accurate, and as specific as practicable." That same standard of specificity is the hallmark a neutral looks for in an internal hold directive.
Precision comes from consulting the people who know the data. The Principles advise that requests and responses "should be prepared in consultation with custodians, IT custodians, and/or IT administrators so the resulting discovery is reasonably targeted, clear, complete, accurate, and as particularized as practicable." Documenting who was instructed to preserve, what sources were addressed, and how IT implemented the hold converts an assertion of good faith into a demonstrable record.
Resolving Preservation Disputes Before They Become Sanctions Motions
When the scope of preservation is contested, the Principles direct an orderly process rather than self-help. If there is a dispute, "the parties should comply with the process outlined in Local Rule 104.7 and fully discuss the reasonableness and proportionality of the preservation," and if they cannot resolve it, "the issue should be promptly raised with the Court." Raising a preservation dispute early—rather than litigating it after data is gone—is often the difference between a manageable disagreement and an irreparable loss.
This preference for early, cooperative resolution aligns with the overarching purpose of the ESI Principles: to "encourage reasonable electronic discovery" with "the goal of reducing cost, burden, and delay" and to "promote the avoidance or early resolution of disputes regarding the discovery of ESI without Court intervention." A neutral facilitating such a dispute focuses the parties on reasonableness and proportionality rather than on characterizing conduct as culpable.
Where Culpability Enters: The Sanctions Framework
When preservation fails and a party seeks sanctions, the degree of fault matters to what a court may impose. Rule 37's remedies for failure to comply with a discovery order include "directing that the matters embraced in the order or other designated facts be taken as established," "prohibiting the disobedient party from supporting or opposing designated claims or defenses," "striking pleadings in whole or in part," "dismissing the action or proceeding in whole or in part," and "rendering a default judgment against the disobedient party."
The Advisory Committee's own explanation situates these measures within a long-standing distinction. The 1937 Note explains that such orders are "in accord with Hammond Packing Co. v. Arkansas," which "distinguishes between the justifiable use of such measures as a means of compelling the production of evidence, and their unjustifiable use" "for the mere purpose of punishing for contempt." The Committee further recognized, interpreting Societe Internationale v. Rogers, that "wilfullness was relevant only to the selection of sanctions, if any, to be imposed." For a party defending its litigation hold, the lesson is consistent throughout these authorities: reasonable, proportionate, well-documented preservation efforts are what distinguish an ordinary loss of ESI from conduct that exposes a party to the most serious remedies.
This article is provided for general informational purposes only and does not constitute legal advice. Engagement of Daniel Garrie as a neutral is administered exclusively through JAMS.