FEDERAL COURTS LAW REVIEW - 2005 Fed. Cts. L. Rev. 5
PRESERVATION OF DOCUMENTS IN THE ELECTRONIC AGE - WHAT SHOULD COURTS DO?
By John L. Carroll
[a.1] Preservation of information in the electronic age for use in litigation presents difficult challenges to parties, counsel, and courts. There is a dearth of judicial rules of procedure for the issuance of preservation orders. In filling the lacunae, some judicial precedents suggest that the standards for the issuance of preliminary injunctions must be met for preservation orders. However, better reasoning to the contrary is set out in opinions in Pueblo of Laguna v. United States and Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp. These cases promulgate standards that are effective, relevant and fair to all parties in preserving fragile information in electronic form. Also, to be most effective, preservation orders must be timely , clearly delineated and narrowly focused. An appropriate process for the issuance of interim and final preservation orders may be found in the fourth edition of the federal Manual for Complex Litigation.