Multiple perspectives exist regarding how businesses in the regular course of business should interpret the concept of "preserve in place." One view is literal: records should not be moved, physically or virtually. To do so would violate the "preserve in place" concept. This perspective, however, creates several problematic issues - some technical, others operational. Some examples are:

• E-records stored in an environment where they need to be moved to ensure their preservation; the existing environment threatens the quality and maybe even the existence of the information needing to be preserved.
• The media on which the records to be preserved are situated has a known shelf-live, which is currently near its maximum.
• The records to be preserved were created on a system that now is obsolete and the owner of the information is unable to support its continued operation.
• The organization is the subject of much litigation and has substantial preservation responsibilities; it, therefore, would like to perform its preservation responsibilities on a dedicated "preservation" system. This concern is founded in the reality that any movement of e-records does alter some of the underlying metadata relating to each record moved.

This last example is the subject of particular confusion. If "preserve in place" is taken very literally, moving e-records to a dedicated preservation system is a very risky and, for some, an unacceptable course of action. To preserve these records on their native or original-born systems introduces great operational and technical complexities in meeting the organization's preservation responsibilities unless it retains all its e-records for as long as there are any preservation holds relating to any of the records in that group (i.e., year or project). This results in huge cost burdens. Some General Counsels do not want to take the legal risk of moving e-records that are the subject of a preservation hold order. To them, the potential sanctions risk is greater than preserving everything.

Waiting for case law for guidance on this point is going to take time. This session will provide a unique opportunity to hear a judicial perspective: discussing, commenting and clarifying the intent of the preservation language of the FRCP Committee Notes and thereby bringing a new reality to those who are taking the "preserve-in-place" language very literally - maybe overly so.