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Fear and Loathing in Preservation

By Stacy Jackson and Jennifer Scrafford
April 25, 2008

Most in-house counsel know the types of inquiries that should trigger evidence preservation or collection protocols. Once there is reason to believe there will be litigation or investigation, the duty to preserve kicks in immediately. But what's next? First, make a list of people who are likely to have control over potentially evidentiary documents and contact this long list of custodians. Then send out a document retention letter or request for documents and wait for your data to roll in, right? Wrong. Before sending any communication to your custodians, you should consider that they are not attorneys and are usually uncomfortable with the entire litigation process. Considering and having ready answers for the following ten questions'which your custodians are sure to voice ' will help to make your collection efficient and cost effective. It will avoid business interruptions and settle the fear and anxiety your custodian may be feeling. Being organized about these answers will inspire confidence and cooperation from your custodians and will be sure to make your job easier.

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