Your new client, a Fortune 500 company with a significant litigation portfolio, has suggested that the easiest way to comply with legal hold obligations for 100 custodians potentially at issue in a new false advertising class action is to remove a set of disaster recovery backup tapes from rotation. What are your first five questions?

  1. Are you aware that taking a set of backup tapes out of rotation will create an additional repository of potentially relevant information for all lawsuits filed between now and the time this matter is resolved?

Given that significant litigation can take years to play out, the off-line set of backup tapes could become a source of potentially relevant and unique information in other litigation filed during the life of the class action (in addition to active custodian information). When the false advertising class action is finally resolved, legal hold obligations from other matters may preclude destruction of the tapes. And if the practice of taking tapes out of rotation is followed in other matters, data will accumulate and increase the risk, cost, and complexity of discovery in other matters.

  1. Has this been your practice in the past?

Backup tapes taken out or rotation are the gift that keeps on giving for a company that is regularly involved in litigation or government investigations. The client’s suggested approach is a red flag to ask whether other sets of backup tapes have been taken out of rotation (and whether they include custodians and time frames relevant to your matter).

  1. Are there automatic processes in place that could result in the deletion of active custodial data?

Are custodians subject to mailbox size limits that encourage deletion of information or the automatic deletion of email after a certain time period (i.e., 60 days)? The answer to this question may provide guidance about whether you can rely on legal hold instructions to a custodian and preservation in place until key custodians are identified. This question should also be coupled with a discussion involving the company’s IT function concerning other more tailored, custodian-based preservation options.

  1. Does this case require ongoing preservation of data created after the legal hold obligation takes effect?

If it does, other alternatives – for example, custodian-based archiving or periodic custodian-based backups – would provide a more tailored solution to the preservation challenge presented.

  1. Will you authorize us to talk to our opponents (and the court if necessary) about preservation and the challenges we face?

Early disclosure and discussion of who is most likely to have the information needed to resolve disputed matters could reduce the scope of your preservation (and ultimately your search and review) burdens. And through transparency you may be able to gain agreement on an approach to preservation that is less onerous – both in the short and long terms – than the actions suggested by the client. Note that this discussion is envisioned by the anticipated December 2015 amendments to the Federal Rules of Civil Procedure. Rule 26(f)(3)(C) will require parties to state their views on preservation in a discovery plan – [and] presumably in the 26(f) conference that precedes that plan. Where preservation issues cannot be resolved cooperatively by the parties, the committee note states it “may be important” to promptly seek “judicial guidance about the extent of reasonable preservation.”