Webinar

Fireside Chat on Complying with the Duty to Preserve ESI

Introduction: A Growing Tension in Legal Preservation

Legal operations leaders, compliance officers, enterprise IT leaders, and heads of information governance face an evolving challenge: how to fulfill preservation duties when electronic evidence spans an ever-expanding universe of platforms, devices, and file types. Gone are the days when preserving email and spreadsheets sufficed. Today, the duty to preserve encompasses Slack messages, Microsoft Teams chats, Zoom recordings, attachments in ERP systems, ephemeral messaging apps, and even Internet of Things (IoT)-generated data.

What’s at stake? Courts increasingly scrutinize whether parties meet their preservation obligations under the Federal Rules of Civil Procedure—especially Rule 37(e), which addresses loss of electronically stored information (ESI). Failing to preserve relevant ESI can lead to severe consequences, including sanctions, adverse inference rulings, and irreparable damage to a litigant’s case.

At the same time, organizations face new hurdles in identifying and preserving ESI. Unlike traditional data sources, modern platforms rarely work in isolation. Shared documents evolve in real-time on cloud-based collaboration platforms. Messaging threads branch into multiple channels, containing edits and deletions. Employees exchange sensitive information across personal devices, shadow IT systems, and unauthorized applications. This complexity demands not only sound legal judgment but also a technology-first approach to preservation.

This tension was the focus of the "Fireside Chat on Complying with the Duty to Preserve ESI," featuring John Jablonski, Managing Partner at Gerber Ciano Kelly Brady LLP, and Joshua Gilliland, eDiscovery Content Marketer at Reveal. During the session, they explored case law trends, preservation pitfalls, and the tools needed to navigate modern ESI preservation.

What Is the Duty to Preserve?

Parties are legally obligated to preserve relevant evidence as soon as they reasonably anticipate litigation or receive notice of a triggering event, such as the threat of a lawsuit or regulatory investigation. This duty extends to electronically stored information (ESI) across all platforms, systems, and devices under the party’s control. Courts evaluate whether a party’s preservation efforts were reasonable, defensible, and tailored to the scope of expected litigation.

Failing to meet this duty jeopardizes credibility and opens the door to penalties under Rule 37(e). As John Jablonski noted during the webinar, relying on mere negligence as an excuse no longer holds up in court. Instead, litigants must demonstrate a systematic, well-documented approach to identifying and preserving information relevant to a case.

So when I'm consulting a a client, we're looking at, you know, what what kind of evidence exists that could be used against us to establish the date of the trigger event. If there's an email that you're going to have to turn over discovery where someone is saying, hey, this event happened. I believe we're going to get sued. Well, you probably triggered the duty to preserve evidence at that time. If folks are wondering, gosh, I don't know if we're gonna get sued. Maybe we'll get sued. Maybe we won't get sued. Maybe the duty to preserve hasn't been triggered. It also goes to the nature of the parties and the sophistication of the parties. I've seen a lot of cases where the duty to trigger was different for the defendant and different for the plaintiff with almost identical sets of data. So let's say cell phone data or mobile phone data, the the duty to preserve was triggered by when the plaintiff anticipated filing the case, But the plaintiff was unsophisticated and didn't really know, so the court really hasn't held that against that person. But the defendants have been held in the same case to a much stricter standard because they were repeat litigants and litigation. They should have known better from the court's perspective. So it's very fact specific, and you should take a look at it from the perspective of if an objective third party was looking at this evidence, do they believe that we had a duty to preserve evidence, and was it triggered at that time?

Insights from the Fireside Chat

John Jablonski and Joshua Gilliland shared tangible insights from their extensive experience in advising clients on legal holds, information governance, and enterprise data management.

1. The Evolving Scope of ESI

Jablonski emphasized that today’s definition of ESI is far broader than it was even a decade ago. While early eDiscovery centered on emails and Word documents, modern evidence now includes:

Slack or Teams messages, including metadata on edits and deletions.

Zoom meeting recordings, chat logs, and saved participant transcripts.

ERP system data, ranging from financial transactions to customer records.

IoT-generated insights, such as sensors embedded in machinery or devices measuring environmental conditions.

We have modern ESI. And, Jeffrey, like, this is what you do, man. Can you help us understand what is modern ESI? Yeah. So attorneys have been been, for the longest time, very focused on electronic communication as it just primarily email and loose documents. And that if you ask most attorneys, that that is the bulk of ESI. However, the fundamental shift in the modern workplace is that most work now occurs on enterprise communication platform, and far less of it occurs on on email. So what I mean by that is you're doing a lot of your work on Microsoft Teams or on Slack. And so that communication is almost more important in many respects than some of the email messages that are being sent within an organization. So Modern ESI adds that whole enterprise chat communication, but it also expands it well beyond that. Ephemeral messaging becomes a problem. I was I was talking with a an attorney at a conference couple years ago, and she was working on a case that involved sensors in cement that were measuring pressure. And that was, those the sensor data had to be collected for the case she was on. So the whole Internet of Things, what temperature was the refrigerator running at, what, what speed was was the car heading, And what are the the what other telemetry of that car was was recorded as part of the case? There's a lot more electronically stored information now that simply will well beyond the e the email world. And that's what we're dealing with, and how we address that both from a preservation standpoint and from a collection standpoint is the challenge.

Identifying what falls within the scope of preservation is critical. A “preserve everything” approach, often chosen out of fear of sanctions, can be counterproductive. Not only does over-preservation create significant storage costs, but it also locks organizations into potential exposure for irrelevant data in future litigation.

Jablonski advocated for taking a narrow, defensible approach to scope, guided by facts, key custodians, topics, and data sources relevant to the anticipated case. Custodian interviews and system-specific questionnaires can help refine what data truly needs preservation.

2. Defensible Processes Protect Against Sanctions

Courts place a premium on the process behind a party’s preservation efforts. Simply issuing a legal hold notice is insufficient. As Jeffrey Wolff, Principal Strategic Engineer at Reveal, explained during his demonstration of Onna, “What’s important to the courts is that there is a defensible process that you can point to. We didn’t just send emails out. We actually had a process. We educated our employees on how we deal with a legal hold.”

I think it's really important to understand that. Court cases talk about, the scope of preservation being related to relevant evidence, potentially relevant evidence, and under the federal rules and under state court, those are very broad definitions. And so I have a lot of clients say, well, we're just gonna preserve everything. Well, depending on the size of your organization, and and Jeff very appropriately shook his head no, that that's that's not the greatest decision because it can lock you into future litigation if you if you preserve very broadly. It also, goes to what you're eventually going to be tested on from a from your opponent's perspective or for the from the court's perspective. So the the case law talks about preserving evidence related to the facts of the case, the key custodians in the the case. And so to the extent that you're able to map that out and and sketch out what that scope is, I think it's really important.

Defensible processes go beyond documenting who received hold notices. They encompass:

Acknowledgment tracking to confirm recipients understand preservation instructions.

Auditing compliance with hold notices, including verifying whether employees followed protocols.

Regular updates and modifications to hold notices when new information or trigger events arise.

Jablonski highlighted the importance of attorney direction in managing legal holds, noting that courts expect legal holds to be overseen by qualified attorneys, not left to automated systems or non-legal staff.

3. Targeted Preservation Reduces Risk

Not all systems support “in-place” preservation. For example, Slack and similar platforms may retain only seven days of message history unless organizational retention policies configure broader scope. Onna’s integrations enable organizations to surgically target specific sources of ESI, avoiding the risks of under-preservation or over-collection.

Using hypothetical Slack channels, Wolff showcased how Onna allows users to identify relevant workspaces, custodians, and even historical edits and deletions. The result? A narrower collection that eliminates unnecessary data before it enters the costly eDiscovery pipeline.

Advancing eDiscovery: Technology's Role in Preserving Modern ESI

Onna platform offers a decisive edge in today’s rapidly evolving eDiscovery landscape. More than just a collection tool, Onna empowers legal teams to manage preservation obligations with precision and defensibility.

Key Features of Onna:

Broad Integration Across Enterprise Systems : Onna bridges the gap between diverse data sources, connecting to applications like Slack, Microsoft Teams, Zoom, Google Workspace, Box, Dropbox, and Jira. This ensures holistic coverage for modern ESI challenges.

So we touched on Slack, so I'll I'll use Slack as an example. What Ona lets you do is come in here and say, I'm going to connect to my Slack instance. I'm gonna create a one time synchronization. This is a snapshot. I want a snapshot of data that is relevant to this case. I'm going to provide a date range that is a sync start date and a sync end date for so I'm not over collecting or over preserving data which is also a challenge as we discussed earlier. And I'm going to go ahead and let's say I want to collect all of the data from August first through today. I'm gonna continue in. One of the nice things about ONA is that IT can set ONA up for an organization and then hand the keys over to the application to the legal department, to the HR department, to the compliance team. And they don't need the credentials to each of the data systems because IT has already authorized ONA to talk to those systems. So they have the access that is needed without needing the credentials to be able to collect data for the purposes that their business legal business requirement

In-Place and Targeted Preservation : For systems supporting in-place preservation, Onna ensures compliance without disrupting organizational workflows or retention policies. For platforms requiring extraction, Onna’s targeted approach reduces unnecessary data volume.

Enhanced Metadata Handling : Detailed metadata extraction, including edits, deletions, and timestamps, ensures defensibility in court while providing essential context for downstream legal reviews.

Export Integration : Once relevant data is collected, organizations can export directly into eDiscovery review tools for deeper analysis, redaction, and production needs.

Proactive Risk Management : By auditing preservation workflows and documenting defensible processes, Onna helps organizations mitigate risks before a discovery dispute arises.

Why the Stakes Are Higher Than Ever

The legal challenges posed by modern ESI, particularly ephemeral messaging, cloud-stored collaboration documents, and IoT data, require organizations to adopt sophisticated workflows and tools. Courts demand accountability in preservation processes, and failure to adequately prepare can result in sanctions, adverse inference rulings, or reputational harm.

Compliance officers and legal operations leaders must proactively invest in technology solutions that enable defensible preservation without excessive costs or exposure. With Onna’s capabilities, organizations can meet the demands of modern litigation while maintaining control over their data, their processes, and their risks.

Learn More

To see how Onna tackles modern ESI preservation challenges, request a demo today. Or, watch the on-demand webinar recording featuring John Jablonski, Joshua Gilliland, and Jeffrey Wolff for an in-depth discussion of preservation obligations, recent case trends, and how parties are addressing new ESI complexities.

Don’t let modern ESI risks overwhelm your legal team, equip yourself with the tools and expertise needed to tackle preservation with confidence.

By embracing innovative tools like Onna, your organization can navigate the complexities of modern ESI with precision and compliance. Let preservation obligations work for you—not against you.

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