The literature on electronic discovery often focuses on the issue of "mutability," that is, the apparent ease with which computer files may be altered or destroyed. This is in direct contrast to the literature’s alternate focus in electronic file indestructibility, discussed above. It is sometimes difficult to square these two apparently contradictory positions.

Active files on computers, especially shared data on network servers, are constantly changing. In the normal course of business, files are opened, edited, added to or subtracted from, or deleted. They are subject to manipulation in ways that static paper documents, stored in file cabinets, are not. Word-processed documents or e-mail messages may take on a more-or-less permanent form once completed, but financial records, customer databases, and other data compilations are dynamic. Even the act of opening files for review in the course of discovery may fundamentally change an important characteristic, such as automatically-generated dates or calculations of interest. In the discussion of electronic discovery volume above, it was noted that many computer network administrators will routinely create back-ups of network data. Many administrators keep these backups forever, but others will do exactly what they are supposed to do, and overwrite them in the normal course of business with more current data.

This routine, systematic churning of data means that when a legal action is filed, or when it is apparent that an action will be filed, the information system must be frozen in time to preserve the discoverable evidence, without crippling the organisation in the process. This may be accomplished by creating "images" of the disks and other data storage media, and basing discovery on the images, rather than the active files. There may be a tendency for attorneys to either delay issuing instructions to their clients to preserve data or disagree over the procedure. Meanwhile, the clock may be ticking, as especially in large, decentralised organisations, the evidence may be disappearing.

Distinct from the routine churning of data resulting in the inadvertent destruction of potential evidence is the perception in the electronic discovery literature that widespread spoliation is occurring. It should be noted that there is no empirical evidence for this, but the literature portrays a world in which individuals faced with potential discovery immediately delete damaging e-mail and word-processing files. The perception is supported by ample anecdotal evidence and by assumptions that electronic evidence is easier to destroy than conventional paper evidence.

There may be a tendency to dismiss the fears associated with the mutability of electronic evidence by noting that all electronic data is recoverable, and that nothing is really lost. This is not entirely true. Multiple overwriting can, indeed, make data unrecoverable, and routine mutation of the data can render it unreliable or take it out of context. Even if the destruction of electronic evidence, inadvertent or wilful, is ultimately unsuccessful, the cost of locating and recovering the evidence will increase substantially. This fact squares the apparent contradiction in the literature: while the complete physical destruction of electronic data is difficult or impossible, it is relatively easy to render the data inaccessible or too costly to be retrieved. This form of evidence destruction is just as likely to occur inadvertently in the routine course of business as it is to occur at the hands of a wilful spoliator.

From a policy perspective, it is important that the courts recognise this danger of increased costs and delay, and be open to early action to preserve data. Such early action may take the form of an immediate conference of the parties to identify areas for electronic discovery and preserve the necessary evidence, the development of a data preservation protocol, or the appointment of a neutral expert to oversee the parties’ data preservation activities. One of the unique attributes of the new Civil Procedure Rules in the United Kingdom is the concept of pre-action disclosure under pre-action protocols.⁵⁵ While it is contemplated that protocols will be developed for routine cases, a protocol for preservation of data may be useful, especially if such a protocol can be scalable to reflect the needs of a variety of cases. The Federal Rules of Civil Procedure in the United States have no equivalent method of influencing the actions of the parties prior to filing, but individual judges may use their discretion under FRCP Rule 16 to issue instructions on data preservation to the parties early in the procedings.⁵⁶

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