What Every Organization Should Know About Evidence Preservation

Organizations must begin preserving evidence as soon as they anticipate a legal dispute, securing both physical and digital evidence. Evidence preservation requires strict adherence to protocols to maintain its integrity, authenticity, and legal admissibility.

Over approximately four years, between October 2020 and September 2024, no legal action was taken in more than 30,000 prosecution cases in England and Wales due to missing, lost, or damaged evidence, according to a BBC article. Among them were over 550 sexual offences and 70 homicides. Improper evidence preservation can lead to similar issues in claims or lawsuits.

Evidence preservation is the process of taking all necessary measures to prevent the loss, damage, or alteration of evidence, ensuring it remains reliable and usable in a legal proceeding. The process is triggered by the legal hold process, which mandates the preservation of all relevant evidence when litigation is anticipated or pending.

If your organization receives legal holds, an eDiscovery platform and robust information governance software can help ensure compliance with this directive. The former provides the technology and workflows needed to legally and defensibly preserve electronically stored information (ESI); the latter has the tools and framework to manage data throughout the evidence preservation lifecycle.

eDiscovery and retention are critical components of this process, as during a legal hold, you must temporarily suspend data retention policies, including routine data purging.

Understanding Evidence Types

Understanding various forms of evidence helps organizations build strong cases in investigations and develop objective business strategies. Evidence in legal proceedings or investigations is classified by its nature and presentation in court, including:

• Physical Evidence: Tangible items, such as equipment or hard drives
• Documentary Evidence: Presented in document form, including written, digital, audio, or video evidence
• Testimonial Evidence: Oral statements made under oath
• Demonstrative Evidence: Visual aids, such as charts, diagrams, or models

Tailoring how your organization handles evidence based on its type can improve effectiveness, efficiency, and even produce quality outcomes by addressing the specific disadvantages and leveraging the unique strengths of each type of evidence.

What Are the 4 Guidelines for the Preservation of Evidence?

Large organizations, particularly in technology, finance, and pharmaceuticals, frequently face legal holds due to their size, regulatory oversight, and high litigation volumes. These organizations must preserve evidence upon initiating a legal hold process and should implement strategies to adhere to the following legal evidence guidelines:

• Maintaining Chain of Custody: Documenting who handles evidence and when
• Preventing Alteration: Use of write blockers for digital evidence, while avoiding working on originals
• Proper Documentation: Compile photos, videos, and notes describing the condition and context of the evidence
• Securing Evidence: Physical security, which should include controlled access and storage in safe, cool, and dry environments

Many jurisdictions also have specific retention policies that determine how long evidence must be kept, which varies by case type. This affects both eDiscovery and retention, as organizations must temporarily stop data retention policies and instead implement data preservation strategies during the evidence preservation process.  

What You Should Do to Preserve Digital Evidence: Best Practices

Digital evidence is any information stored or transmitted in digital form that may be used in legal proceedings. Best practices for digital evidence handling and preservation include:

• Using forensic imaging to create exact copies of digital data
• Verifying the evidence using hashing techniques to ensure data integrity
• Handling volatile data carefully and promptly
• Using certified tools and methods for copying and analysis

An eDiscovery platform and information governance software are also tools you can use to manage digital evidence to ensure organizational compliance.

Organizational Policies and Training

Implementing evidence management software and systems is a multi-step process that involves establishing organizational policies and conducting staff training to ensure effective management and use of these tools. Prioritize:

• The development of an evidence preservation policy tailored to your organization
• Assigning roles and responsibilities for evidence handling
• Incorporating training so that staff understand procedures before the actual need

These steps safeguard legal compliance, reduce litigation risks, and preserve evidence integrity.  

Storage and Long-Term Preservation

The duration of evidence preservation can vary based on the type of evidence and specific laws. A legal hold process initiates the evidence preservation lifecycle. It can last for a few years for certain payroll and tax records, and up to 40 or more years for medical or exposure records.

Proper storage is crucial to long-term preservation and should involve:

• Secure and limited access storage solutions
• Creating and keeping multiple backup copies
• Planning for long-term preservation to maintain the usability of evidence

This maintains evidence integrity, ensures fair legal processes, and allows for the re-examination of cases.

Frequently Asked Questions

What Is the Preservation of Evidence?

Preservation of evidence is the process of collecting, securing, and maintaining all relevant physical, digital, and testimonial information to ensure its integrity and availability for legal proceedings. This process is a legal duty that helps establish facts objectively and supports a fair trial by preventing evidence from being lost, altered, or destroyed.

Who Is Responsible for Preserving Evidence?

Attorneys and their clients involved in civil litigation are responsible for preserving evidence once litigation is anticipated, which can happen before a lawsuit is officially filed. In criminal cases, law enforcement officers, prosecutors, and other investigators are responsible for collecting and preserving evidence from the moment an incident occurs.

Why Does Evidence Need to Be Preserved?

Evidence must be preserved to:

• Ensure a fair trial
• Support legal arguments
• Uphold constitutional rights

Proper preservation maintains the integrity of evidence, such as physical objects, documents, and digital data, which can be crucial for determining guilt or innocence, proving or disproving claims, and preventing wrongful convictions or dismissals.

Evidence Preservation: Adopting the Best Policies and Practices

Strong evidence preservation helps ensure justice, accuracy, and fairness in legal proceedings. It provides evidence for claims, establishes liability and damages, and facilitates accurate reconstruction of events. The legal hold process triggers evidence preservation, making the adoption of eDiscovery and retention policies and best practices crucial for compliance.

Reveal's eDiscovery platform, which incorporates information governance software, has been helping thousands of businesses globally comply with legal holds. We can do the same for you by making evidence preservation more manageable while ensuring your organization is fully compliant. Schedule a demo today to avoid legal complications.