How Much Must Actually Be Kept
Perfection in preserving electronic information is not achievable and is not required. The federal rule asks only for reasonable steps, and reasonableness is measured against the same proportionality factors that bound discovery itself.
The rule in short
The preservation duty is limited by relevance and proportionality rather than by volume. Rule 26(b)(1) confines discovery to matter proportional to the needs of the case, and Rule 26(b)(2)(B) allows a party to identify electronically stored information as not reasonably accessible because of undue burden or cost. The committee note to the sanctions rule states that reasonable steps suffice and that perfection is often impossible, but a party urging disproportion has to supply specifics.
Every preservation decision is a decision about cost. Freezing a mailbox is cheap; freezing an enterprise is not, and the difference between the two is measured in staff time, storage contracts and the operational friction of systems that can no longer clean themselves. The federal rule does not ask for everything. It asks for reasonable steps, and reasonableness is a proportionality judgment made under uncertainty.
Proportionality as a limit on preservation
Rule 26(b)(1) confines discovery to matter relevant to a claim or defense and proportional to the needs of the case, listing the importance of the issues, the amount in controversy, the parties' relative access to information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden outweighs the likely benefit. Nothing in that provision mentions preservation, and yet it governs it.
The connection is straightforward. There is no reason to preserve material that could never be discovered, and the committee note to the sanctions rule identifies proportionality as a factor in evaluating the reasonableness of preservation efforts. It also states in terms that reasonable steps suffice and that the rule does not call for perfection, which is the closest the federal rules come to acknowledging that some relevant material will be lost in every large case.
The note goes further and permits a party to act reasonably by choosing a less costly form of preservation where it is substantially as effective as a more expensive one. That sentence is the basis for most defensible scoping decisions: preserving a mailbox in place rather than imaging a laptop, or capturing an export of a channel rather than freezing an entire platform.
Uncertainty is the complicating factor. Proportionality is easiest to assess once the claims are pleaded and the amount in controversy is known, and preservation obligations attach before any of that exists. A party scoping a hold in anticipation of a claim is estimating the size of a case it has not seen, which is why early scoping decisions are usually broader than the same party would defend later.
Sources that are not reasonably accessible
Rule 26(b)(2)(B) gives the argument a specific home. A party need not provide discovery of electronically stored information from sources it identifies as not reasonably accessible because of undue burden or cost. On a motion, the party from whom discovery is sought must make that showing; if it does, the court may still order production for good cause and may specify conditions.
The classic examples are disaster-recovery media held only for restoring systems after a failure, legacy formats requiring obsolete equipment, and fragmented or deleted data recoverable only through forensic reconstruction. What these have in common is that retrieval requires a project rather than a query.
| Source | Argument made | How courts have responded |
|---|---|---|
| Disaster-recovery backup sets | Held for restoration, not retrieval | Commonly accepted as not reasonably accessible |
| Legacy systems in obsolete formats | Requires equipment no longer operated | Often accepted, subject to cost sharing |
| Deleted fragments recoverable by forensics | Reconstruction cost far exceeds value | Usually accepted absent evidence of deliberate deletion |
| Active mailboxes of peripheral employees | Volume and review cost | Rarely accepted; these are accessible sources |
| Cloud platform data under contract | Held by a vendor, not the party | Rarely accepted where the contract gives a right to obtain |
The pattern is that inaccessibility is about the technical character of the source, not about the quantity of material in it. A large volume of ordinary email is expensive and entirely accessible, and courts have consistently declined to treat expense alone as the test.
The committee note states that a party urging that preservation requests are disproportionate may need to provide specifics about its systems in order to enable a meaningful discussion. A party that scoped narrowly, said nothing, and produced the reasoning only after evidence was lost is making the argument in the least favorable posture available. The same points raised at the planning conference cost nothing and bind the other side to a position.
The cost arguments that succeed
Successful burden showings share a structure. They identify the specific systems at issue, state the volume in units a court can evaluate, describe the technical steps required, and attach a figure supported by something other than assertion. Where the party can also show that the same material exists in an accessible source, the argument is close to complete.
Unsuccessful showings are general. A statement that preservation would be burdensome, or that the organization has a great deal of data, tells a court nothing it can weigh against the value of the evidence. Courts have repeatedly noted that the party resisting is the only one that knows its own systems, and that the failure to describe them is a choice.
Resources are expressly relevant on both sides of the comparison. A demand that would be routine for a large enterprise may be disproportionate for a small business or an individual, and the note directs sensitivity to a party's sophistication in litigation. That works in the other direction too: a party with a mature records program has fewer excuses for losing material that its own systems were designed to retain.
Making the showing before anything is lost
The strongest position is a documented scoping decision recorded at the time it was made — the custodians included and excluded, the systems held and released, the reasoning, and the person who approved it. That converts an after-the-fact rationalization into contemporaneous evidence of a considered judgment.
It also supplies the substance of any conversation with the other side. A recipient of a preservation demand from an opponent that can respond with a specific description of what it will hold and why is negotiating from a position; one that responds with a refusal is not. Where agreement fails, the scheduling order under Rule 16 can fix the boundary judicially and end the argument.
Independent obligations complicate the picture. Regulations in health care, financial services and other sectors impose retention periods for their own reasons, and those requirements are not displaced by a proportionality judgment in a lawsuit. Conversely, the committee note cautions that failing to meet an independent retention requirement does not by itself prove that preservation efforts in a particular case were unreasonable.
Why the timing of the argument matters
Proportionality arguments made before loss and after loss are the same argument received very differently. Before loss, the court is allocating cost between two parties with competing interests, and a reasonable proposal is likely to be adopted. After loss, the court is deciding whether a party's conduct was reasonable while looking at a hole in the record, and the same proposal reads as an explanation.
That asymmetry shapes practice on both desks of the problem. It is why the suspension of automated destruction is usually applied broadly at the outset and narrowed later, and why difficult categories such as messages on devices employees own are better raised early than resolved unilaterally. Where the argument fails and material is gone, the analysis moves to the measures available for lost electronic evidence, where proportionality reappears as a factor rather than as a defense.
Points to carry away
- The sanctions rule asks for reasonable steps to preserve, not for perfect capture.
- Proportionality under Rule 26(b)(1) bounds preservation as it bounds discovery.
- Rule 26(b)(2)(B) permits a party to identify sources as not reasonably accessible for undue burden or cost.
- A party may satisfy the duty by choosing a cheaper method that is substantially as effective.
- Generalized cost complaints fail; courts expect specifics about systems, volumes and figures.
- Independent retention obligations imposed by regulation run alongside and are not displaced.
Questions readers ask
Does proportionality allow a party to decide unilaterally what to keep?
It allows the decision to be made, but not safely in silence. A party that scopes its preservation narrowly and says nothing carries the risk that a court will later disagree, and the argument arrives after the material is gone. Raising the boundary early — in correspondence, at the planning conference, or by motion — converts a unilateral judgment into a recorded position. Courts have been noticeably more receptive to proportionality arguments made before loss than to the same arguments offered as an explanation afterward.
Are disaster-recovery backups ever required to be preserved?
Sometimes, but they are the standard example of a source that is not reasonably accessible. Where live systems hold the same material, the backups add nothing and preserving them is expense without benefit. The position changes when live data has been lost, because the backup may be the only route to restoration, and the sanctions rule directs attention first to whether lost information can be restored or replaced. A party that rotated the backups after losing the live data has removed the cure as well.
Does the size of the organization matter?
It is expressly relevant. The proportionality factors include the parties' resources, and the committee note directs courts to be sensitive to the resources available for preservation and to the party's sophistication in litigation. An individual litigant is not expected to do what a large enterprise with a records program does. That does not create an exemption, and a small party is still expected to stop deleting what it knows to be relevant once a dispute is foreseeable.
Sources
- Federal Rule of Civil Procedure 26, Cornell LIISubdivision (b)(1) states the proportionality factors and (b)(2)(B) the limit for sources that are not reasonably accessible.
- Federal Rule of Civil Procedure 37, Cornell LIISubdivision (e) and its committee note frame preservation as reasonable steps rather than perfection.
- Federal Rule of Civil Procedure 16, Cornell LIIThe scheduling order may fix preservation terms, which is how a scope dispute is resolved before loss.
- Federal Rule of Civil Procedure 1, Cornell LIIDirects construction and administration to secure the just, speedy, and inexpensive determination of every action.
- 45 C.F.R. § 164.316, Cornell LIIAn example of an independent retention requirement that runs alongside any litigation duty.
- 17 C.F.R. § 240.17a-4, Cornell LIISector record preservation periods that constrain how narrowly a regulated firm can scope retention.
Rapid Response Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Evidence Preservation
When the Duty to Preserve Begins
The obligation to preserve evidence arises when litigation is reasonably anticipated rather than when a suit is filed. Federal Rule of Civil Procedure 37(e) presupposes that duty by asking whether information that should have been preserved was lost because reasonable steps were not taken. Anticipation is judged objectively on what an organization knew, and knowledge held by managers and counsel is generally attributed to the organization.
Collecting Data Without Altering It
An electronic record carries system-generated attributes that establish when it was created, who handled it, and where it sat. Ordinary copying overwrites several of them. Forensic imaging captures a bit-level duplicate and verifies it with a hash value; targeted collection captures defined items with their metadata intact; self-collection by custodians is the least reliable and the most commonly criticized. A chain-of-custody record documents each transfer.
Ending a Litigation Hold
A hold ends when the matter that created it is over and no other obligation covers the same material. That requires checking for appeals, related proceedings, regulatory retention periods and other holds on the same custodians before anything is released. The release itself is a written instruction reversing the original, and the record of what was held, collected and released is retained after the material itself is disposed of.