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Legal Duty to Preserve Electronic Information

According to the “Federal Rules of Civil Procedure” (FRCP), organizations have a “Duty to Preserve” all Electronically Stored Information (ESI).

*Important Update as of December 2015* – A new version of Federal Rule of Civil Procedure book went into effect December 1, 2015. Subsection 37(e) replaces the previous subpart in its entirety, and features a new title: “Failure to Preserve Electronically Stored Information.” 
In addition to this amendment to the previous rule, Rule 37(e) is accompanied by official Committee Advisory notes that clearly call out counsel to preserve clients' ESI, and that counsel should. "... become familiar with their clients’ information systems and digital data – including social media – to address these issues."  The implication of the new law is clear: social evidence is given at least equal weight and import as other forms of ESI such as email and documents.

Link to full FRCP text

“The amendments to the Federal Rules of Civil Procedure (FRCP) describe the duty to preserve potential evidence when litigation can be reasonably anticipated”

This presents a unique set of issues when an organizations is involved in litigation, because the duty to preserve requires organizations to preserve email and other electronic communication. This means that you must be able to quickly and easily access, search, place litigation holds and publish electronic communication data, otherwise, your organization could face fines, sanctions and other similar penalties.

Recent “Duty to Preserve” Court Cases

Zubulake v. UBS Warburg LLC, 2004 U.S. Dist. LEXIS 13574, (S.D.N.Y. 2004) ( Zubulake V), outlined the duties of counsel to preserve potentially relevant evidence. This ruling, comprises some of the most often cited in the area of electronic discovery, and were made prior to the 2006 amendments to the Federal Rules of Civil Procedure Phillip M. Adams & Assoc., LLC v. Windbond Elecs. Corp., 2010 WL 3767318 (D. Utah Sept. 16, 2010) In this case, the court reaffirmed its earlier holding regarding the trigger for defendants’ duty to preserve, namely that “in late 1999 the entire computer and component manufacturer’s industry was put on notice of a potential for litigation regarding defective floppy disk components (“FDCs”) by the well-publicized settlement in a large class action lawsuit against Toshiba.” Accordingly, for defendant MSI’s failure to uphold its duty to preserve, the court found sanctions were warranted.

Viramontes v. U.S. Bancorp, No. 10-761, 2011 WL 291077 (N.D. Ill. Jan. 27, 2011) This case reiterates that organizations need not keep electronically stored information (ESI) for legal or regulatory purposes until the duty to preserve is reasonably anticipated. As with other evidence, ESI cannot be intentionally destroyed. In fact, businesses have an affirmative duty to preserve relevant ESI.

Apple Inc. v. Samsung Electronics Co., LTD, Case No.: C 11-1846 LHK (PSG), Slip Op. (N.D. Cal. July 25, 2012) The primary focus of this case was the Defendant’s failure to disable the biweekly auto-delete feature of its proprietary email system despite a duty to preserve. Compounding the problem was Defendant’s failure to follow up with its employees to ensure their compliance with the litigation hold. Rather, it was within each employee’s discretion whether to save relevant documents. As a result of these failures, relevant emails were lost. Accordingly, after finding that Plaintiff had been prejudiced by Defendant’s spoliation, the court ordered that the jury be instructed that Defendant had failed to preserve evidence and that they may presume that such evidence was both relevant and favorable to the plaintiff.

GWAVA® Solution

Be prepared!

You need not wait for the reasonable anticipation of the duty to preserve, with Retain, you will be ready for any potential litigation, or investigation, by preserving all email and electronic communications within one unified archive. Retain provides organizations the ability to securely archive all electronic communication, including email, social media, and mobile messaging, on-prem or on the cloud. This archived information can be easily accessed, searched and published using the built-in eDiscovery tools.

Multi-Platform Unified Archiving

All Messaging data, including email, social media, instant messaging and web search data, is archived into one unified archive. Retain gives you the ability to search, publish, and perform eDiscovery from one central location.

Flexible Archive Access

The Retain Archive can be browsed and searched directly from multiple access points, including: the end-user email client, the Retain mobile app, the browser-based web access client, and the Offline Archive Viewer. Plus, archived data can be exported to a portable stand-alone archive viewer.

Policy-Based Unified Archiving

Retain provides fully configurable policies that allow you to define the specific email, mobile, and social media communication data you want to archive. These policies allow you to define what is archived based on mailbox type, message source, item type, message status, the age of the message, and attachments. You can also filter by folder and attachment type. In addition, Retain has the ability to implement retention policies for all archived data.

Social Media Archiving & Oversight

Retain Social™ provides archiving, monitoring, and data insights. This enables organizations to perform eDiscovery, review messages in context and help determine the tone of all posts and pictures for Facebook, Twitter, LinkedIn, Instagram, Flickr, Pinterest, and Google+. Plus, you get archiving for all YouTube and Vimeo videos and comments.

Mobile Communication Management
Retain Mobile delivers secure, encrypted messaging and archiving for iOS, Android and BlackBerry devices. This solution is for organizations that utilize personal employee and corporate devices to generate and consume business data, while meeting regulatory and compliance requirements.  Retain archives all encrypted SMS/Text messages and dedicated business phone number electronic communication data for iOS and Android, via the secure communications server. Additionally, Retain archives SMS/MMS and phone call logs for Android and BBM, PIN, SMS/MMS and phone call logs for BlackBerry devices. This means there is no need to tether or sync the device and archiving is done in real time. Retain is the only enterprise-ready archiving solution for iOS, Android and BlackBerry devices. 
eDiscovery Regulatory Search

Administrators, records management, and other authorized users can perform the following essential functions with Retain, eDiscovery and regulatory searches including: place litigation holds, print, forward, save, redact and export with the built-in tools.

Compliance & Control

GroupWise, Gmail, Exchange, and Office 365 lack critical capabilities that can put your organization at risk for data loss and compliance violations. Therefore, the standard archiving functionality of these systems is not enough for the enterprise. Retain solves this problem by disabling auto-purge, supporting SmartPurge, allowing for archive policy control, supporting export to PDF, allowing archived messages to be restored to the inbox, allowing for redaction on exported messages and prohibiting message alteration or deletion. These features help ensure your data archive is complete and compliant. 

Web Access Archive Viewer

Only Retain offers an easy-to-use browser-based interface with powerful search tools that let you quickly access, search and perform eDiscovery on the archive.

Open Records Search

Be ready for any open records requests for email, mobile, and social media messages. 

Complete Export Functionality

Export the data easily into either PST, PDF or stand-alone archive viewer formats. The exported file is fully indexed, searchable, and includes a table of contents for quick browsing. 

Redaction Control

Exported data can be redacted, ensuring that personal information, or other redacted items do not become part of the open records request. 

Litigation Hold

To protect any email that may potentially be involved in future litigation, Retain can flag an archived item, or an entire email account, to protect it from any deletion or actions until the hold is removed.

Audit Trail

Retain creates a searchable audit trail of all administrators and users that have permission to search the archive, enabling you to have record of all activity.

Configurable Permissions

Use the Access Control list to grant users, administrators, or others, access to the features and functionality of the Retain system, based on the roles you set. 

End User Mailbox Management

Easily search and restore with the Retain Web Access Archive Viewer. Give end users the ability to: Search, forward, print, restore messages, access, search and view messages in their original context without administrator support.

Fast & Easy Retrieval

Retain contains a built-in Lucene® indexing engine or the Retain High Performance Indexing Engine (for larger deployments).

Meet FRCP Duty to Preserve & Archiving Requirements!
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More info

To learn more about how Retain can help our organization be prepared for potential litigation and investigations, visit or contact us at 1-866-GO-GWAVA or