The proof in a modern dispute lives in electronic form, and how it is preserved, collected, and produced often decides the cost and the outcome. We manage discovery defensibly and govern the records that feed it.
The duty to preserve attaches when litigation is reasonably anticipated, usually weeks before a complaint arrives, and a hold issued on service documents the gap rather than closing it. Since the 2015 amendment to Rule 37(e), a court may presume lost electronically stored information was unfavorable only on a finding that the party meant to deprive its opponent of it; negligence earns a curative measure, not an adverse inference.
Scope is negotiated before it is litigated. Rule 26(f) requires the parties to address preservation and the form of production before the first scheduling order, and Rule 26(b)(1) weighs every request against six proportionality factors, the amount in controversy among them. A Rule 502(d) order entered at the same time lets a privileged document produced by mistake be clawed back without a waiver fight, in that court and in any other.
Information governance is the same work done before anyone has sued. A retention schedule actually followed keeps the hold narrow and the review small, and it is most of the answer to whether reasonable steps were taken. We write the hold, negotiate the protocol and build the schedule.
Issuing and managing litigation holds the moment a dispute is reasonably anticipated. We identify custodians and systems, suspend routine deletion of relevant data, and document each step so the process stands up to scrutiny.
Negotiating proportionate protocols for electronically stored information, covering scope, custodians, date ranges, search terms, and formats, so the discovery plan is set deliberately rather than dictated by the other side's demands.
Forensically sound collection and processing of data across email, chat, file shares, and cloud platforms, coordinated with vetted technical vendors where the capture calls for their tools, with metadata and chain of custody preserved throughout.
Managed review using technology-assisted review and search analytics to cut volume and cost, paired with disciplined privilege screening, redaction, and logging so responsive material is produced and protected material is not.
Building and refining records-retention schedules, data maps, and defensible-disposition programs so a company over-retains less, knows where its information lives, and is positioned to meet a future discovery demand efficiently.
Reconciling US discovery obligations with data-protection regimes and foreign blocking statutes, structuring collection and transfer to respect them, and coordinating with locally admitted counsel where foreign law governs the data.
Litigation is reasonably anticipated when a demand letter arrives, when a dispute reaches counsel, or when the company decides to sue; a court fixes the date later, looking backward. The hold has to reach systems that delete on their own: chat platforms, phone backups and a departed employee's mailbox.
Email threading and deduplication remove the copies. Technology-assisted review, accepted by federal courts since 2012, trains on the lawyers' own coding decisions and is validated by sampling against a recall rate agreed in advance. The protocol fixing custodians, date ranges and search terms is where the bill is set.
If electronic information that should have been kept is lost and cannot be restored, a court finding prejudice may order measures no greater than needed to cure it. Only a finding of intent to deprive permits an adverse inference, dismissal or default. Lost paper falls under the court's inherent authority.
Opposing counsel asks for it at the Rule 26(f) conference, and a Rule 30(b)(6) deposition of the company's systems witness tests it. A current map of mailboxes, chat tools and shared drives, with each retention period attached, lets a hold be scoped in days and defended years later.
A US court usually orders production despite a foreign blocking statute, on a comity analysis, while the foreign regulator can penalize the transfer. GDPR Article 49 permits a transfer needed to establish or defend a legal claim, read narrowly, so the answer is in-country review and a narrowed, pseudonymized export.
Since 2015, Rule 26(b)(1) no longer asks whether a request is reasonably calculated to lead to admissible evidence. It asks whether discovery is proportional to the needs of the case, weighing the stakes, the amount in controversy and the parties' relative access to the information, among six listed factors.
The moment litigation is reasonably anticipated, the clock is already running. Counsel scopes custodians and systems, suspends auto-deletion on the data that matters, issues the hold, and papers every step, because the record of the process is itself the defense.
A data map turns sprawl into an inventory: which mailboxes, chat platforms, shares, and clouds actually hold the story. Then the ESI protocol is negotiated, custodian by custodian, with date ranges, search terms, and formats fixed, which sets the economics of the matter before a single document is read.
Forensically sound collection preserves metadata and chain of custody. Processing, deduplication, search analytics, and technology-assisted review then cut the corpus down to what a human should actually read. This is the stage where a seven-figure review becomes a six-figure one, or fails to.
Reviewers code for responsiveness and privilege under a partner-run protocol, and the redactions and privilege log are built while the review runs. Production goes out in the negotiated format, with a clawback in place for what slips through.
In discovery, the case you can prove is only as good as the process you can defend.
eDiscovery is the identification, preservation, collection, review, and production of electronically stored information in litigation, arbitration, or a regulatory inquiry. That information includes email, chat, documents, cloud data, and the metadata that travels with them. Because so much of the proof in a modern dispute lives in electronic form, how it is handled often shapes both the cost of a matter and its outcome.
When litigation is reasonably anticipated, which a court decides later and in hindsight. A demand letter, a credible internal complaint or the company's own decision to sue are all common triggers, and the date is rarely the day the complaint is served. From that point, routine deletion must stop for the relevant custodians and systems, including chat platforms and departed employees' accounts, and the steps taken must be recorded, because under Rule 37(e) the question is whether reasonable steps were taken, not whether every byte survived.
Information governance is the management of corporate records across their lifecycle: what is kept, where, for how long, and how it is disposed of. It is the upstream side of eDiscovery. A company that knows where its data lives and retains only what it should can respond to discovery faster, cheaper, and with far less risk than one whose information sprawls without a policy.
By deciding scope before anyone collects. The ESI protocol fixes custodians, date ranges and search terms, and a request outside it has to be justified under the six proportionality factors of Rule 26(b)(1). Deduplication and email threading remove the copies before review starts; technology-assisted review then ranks what remains so lawyers read the likely-responsive documents first and validate the rest by sample. A Rule 502(d) order makes a lighter privilege review defensible, because an inadvertent production can be clawed back without a waiver argument. Review is still the largest line, but it is a line that was set at the Rule 26(f) conference.
It depends on why. Under Rule 37(e), if information that should have been preserved is lost because a party failed to take reasonable steps and it cannot be restored or replaced, a court that finds prejudice may order measures no greater than necessary to cure it, such as further discovery or an instruction about the loss. Only on a finding that the party intended to deprive its opponent of the information may the court presume it was unfavorable, instruct the jury accordingly, or dismiss the case or enter default. The record of the hold, its scope and its timing is what separates the two tiers.
Yes, with care. Cross-border discovery has to be reconciled with data-protection and privacy regimes such as the GDPR and with foreign blocking statutes that can restrict the transfer of data. We map those constraints early, structure collection and transfer to respect them, and coordinate with locally admitted counsel where foreign law governs, so the discovery a US matter requires does not create exposure abroad.
Trial advocacy for complex business disputes, contract breaches, and commercial conflicts in state and federal courts, where disciplined discovery so often decides the case.
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Explore →Reviewed by Jonathan D. Herpy, Sr., Senior Partner · Last updated October 2026 · Educational overview · Not legal advice
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