After probably hundreds of thousands of man hours devoted to fighting over preservation agreements and orders or about the failure of a party to properly preserve evidence, a breath of fresh air has emerged. In the case of United States v. La. Generating LLC, 2010 U.S. Dist. LEXIS 20207, 2-3 (M.D. La. Mar. 5, 2010,the parties agreed to a non preservation stipulation. Recognizing that not every case deserves the steam-shovel approach to electronic evidence preservation, scooping up everything in sight, the parties listed an extensive array of ESI that need NOT be preserved. Included in the stipulation (which was approved by the court) were back-up tapes, voice mail messages, PDA data, cell phone logs, deleted files and an interesting array of other material.
In most cases, the parties are happy to lay a trap for the unwary opponent, hoping to find some evidence of spoliation through unpreserved ESI. Let's hope this case sets a precedent for more cooperation among counsel in the future and more realistic approaches to preservation of ESI only when it really needs to be preserved.
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