The document discusses new rules under the Federal Rules of Civil Procedure regarding electronically stored information (ESI) and litigation holds. It notes that the 2006 amendments require lawyers to discuss ESI during initial planning conferences and include ESI in initial disclosures. Failure to institute a litigation hold and preserve potentially relevant ESI when litigation is reasonably anticipated can result in severe sanctions, including adverse inference instructions and millions in damages. The document provides best practices for organizations to develop an ESI retention policy and storage configuration to safely manage ESI and qualify for the "safe harbor" provision against sanctions.

10. Retention Issues in Litigation © DuBois, Bryant & Campbell LLP What is a litigation hold? A communication within an organization that orders all information relating to a dispute that is the subject of current or ‘reasonably anticipated’ litigation be preserved for possible production during litigation

17. Safe Harbor from Sanctions © DuBois, Bryant & Campbell LLP Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI lost as a result of the routine, good-faith operation of an electronic information system. FRCP 37(f)