The US Federal Rule of Civil Procedure (FRCP) 37(e) – on preservation, is pending revision. Note the commentary at aceds.org.
Preservation orders and the rules on Electronically Stored Information (ESI) are complex areas for policy makers and also IT folks. Some of these issues I have raised in my article and also briefly during my talk at BCS in November 2011. Both these are available on this page.
Personally I find the term, ESI a confusing term in the context of electronic discovery/disclosure (edisc). In edisc it is not only the digital/electronic information in storage that the rules/laws are addressing. The word ‘stored’ implies storage media/medium/devices and the data in storage is ‘at rest’. Hard to imagine that emails are ESI. In my talk I stated that edisc folks tend to address edisc by talking about discoverable media/medium/devices which is not the case in edisc. So now the proposed FRCP is addressing ‘discoverable information’ instead of just ESI.