skills/new-matter/references/preservation-at-intake.md

# Preservation at intake

Read this reference when a new matter may implicate preservation and the posture is not assessed, unknown, incomplete, disputed, or urgent. It supports issue spotting and a client conversation; it is not a preservation opinion, legal-hold notice, or substitute for the controlling jurisdiction's law.

## The intake reminder

For a new litigation matter, subpoena, investigation, or credible pre-suit threat, remind the user to raise promptly with the client or responsible legal team:

> Has counsel assessed whether a preservation duty may have arisen, and have reasonable steps been taken to identify and preserve potentially relevant information while that assessment and any hold process proceed?

Adapt “client” for in-house counsel or another responsible legal team. Do not answer the question from the fact that a matter was opened, a demand arrived, or a hold field is blank. Record who supplied the answer, when, and its source.

## Federal baseline to verify

The current [Federal Rules of Civil Procedure](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-civil-procedure.pdf) are the primary federal starting point. Rule 26(f)(2) requires parties to discuss issues about preserving discoverable information, Rule 26(f)(3)(C) puts ESI preservation issues in the discovery plan, and Rule 16(b)(3)(B)(iii) permits scheduling-order provisions about ESI preservation. Rule 37(e) addresses remedies when ESI that should have been preserved in anticipation or conduct of litigation is lost because reasonable steps were not taken and it cannot be restored or replaced. Check the Judiciary's [current-rules page](https://www.uscourts.gov/forms-rules/current-rules-practice-procedure/federal-rules-civil-procedure) and [pending amendments](https://www.uscourts.gov/forms-rules/pending-rules-and-forms-amendments) at use time rather than treating the linked edition as permanently current.

Rule 37(e) does not itself create the preservation duty and applies only to ESI. The [2015 Advisory Committee Note](https://www.uscourts.gov/sites/default/files/2014-09-26-supreme_court-rules_package_final_0.pdf) explains that the duty comes from other law, the rule does not prescribe a universal trigger, reasonable steps do not require perfection, proportionality matters, hindsight should be avoided, and restoration or replacement must be considered before remedies. The duty's trigger and scope come from applicable common law and may also be affected by a statute, regulation, court order, contract, investigation, or other regime. Paper records, tangible evidence, state proceedings, arbitration, administrative matters, criminal matters, regulatory retention, employment, privacy, and cross-border data require separate authority checks.

The [Federal Judicial Center's Rule 37(e) amendment summary](https://www.fjc.gov/publications/amendments-federal-rules-practice-and-procedure-civil-rules-2015-failure-preserve) confirms the threshold sequence and that the rule leaves the common-law duty in place. Its [Managing Discovery of Electronic Information](https://www.fjc.gov/content/323370/managing-discovery-electronic-information-third-edition) guide emphasizes early attention, reasonable and proportional measures, knowledgeable personnel, recurring communication, monitoring, and documentation. The [Sedona Conference Commentary on Legal Holds, Second Edition](https://www.thesedonaconference.org/sites/default/files/publications/Commentary%20on%20Legal%20Holds%20Second%20Edition%20extended%20PC%20period_0.pdf) is influential secondary guidance, not binding law; it likewise treats reasonableness, proportionality, documentation, monitoring, and eventual release as contextual rather than one-size-fits-all.

## What to capture now

Keep the intake short and decision-oriented:

- Potential trigger event, date, source, and why it may or may not make litigation reasonably foreseeable.
- Forum, jurisdiction, posture, and any independent retention or preservation regime.
- Counsel or decision owner responsible for the trigger and scope assessment.
- Whether a hold or other preservation direction exists; issuer, date, recipients, acknowledgment, scope, and current status if supplied.
- Likely claims, defenses, issues, periods, custodians, data stewards, systems, devices, repositories, third parties, paper records, and tangible evidence—each as known, reported, or unknown.
- Immediate loss risks such as auto-delete, ephemeral messaging, device replacement, departing personnel, account closure, system migration, expiring logs, overwritten recordings, or physical alteration.
- Steps the client reports as completed, pending, declined, or unknown; do not upgrade a reported step to verified effectiveness.
- Known gaps, disputed scope, inaccessible sources, privacy or blocking-law issues, and the next human decision.

Preservation is not the same as collection, review, production, or indefinite retention. Do not recommend copying everything, silently image devices, suspend systems, contact custodians, or direct deletion. A legal-hold notice may be one reasonable measure, but its existence alone does not prove that the trigger, scope, implementation, monitoring, or release process is reasonable.

## Handoff

When more than intake issue spotting is needed in a U.S. federal civil matter, offer `document-discovery` for a source-grounded preservation work package. For state, arbitral, administrative, regulatory, criminal, foreign, or other matters, offer research and planning under the controlling forum and use `regulatory` to retrieve official instruments when appropriate; the federal reference may be a comparison but is not controlling. Pass the source IDs, trigger facts, responsible people, likely information sources, time-sensitive loss risks, reported measures, open authority questions, forum, and permissions. The handoff does not authorize notice issuance, system changes, collection, communication, release, or deletion.