In days past, counsel would call a client and ask for the documents relevant to a particular dispute, in essence generally asking for the paper file. The attorney, if concerned, would tell the client not to destroy any documents relevant to the dispute. Discussions about electronically stored information were rare. Those days are long gone.
Now the reverse is true. While paper documents are not yet an anachronism, things are certainly heading very quickly in that direction. One indication is that the fax machine has become largely irrelevant and most offices that have not already eliminated the facsimile will not utilize this outdated technology in the next few years.
Today, when your attorney asks for a "file" related to a dispute, it most likely means information located on a computer, in a server, or more recently in the "cloud," or other off-site location. Even more frequently the electronic records are located in multiple electronic formats some of which have an actual known "physical" location and others not. Thus, the first step in obtaining documents for litigation or in anticipation of litigation is often the identification of their location. This action is particularly critical because of the duty to preserve records under many circumstances.
Anyone could be the subject of litigation and should be familiar with obligations related to document preservation. If you are involved in litigation, your attorney should initially send you a letter outlining your obligations and required actions.
Electronically stored information (ESI) may be located on a mobile phone, tablet, notebook computer, external storage device, flash drive, or in such locations as computer systems that are contained within machinery including those found in automobiles and trucks. While all potential sources of ESI should be considered, email and attachments to email are clearly the principal and most highly utilized and sought after areas for discovery. You are required to preserve ESI that may be located within all of the source modalities, and others particular to your business or industry. Preservation obligations may also include social networking websites and other web-based data.
Many individuals and company executives are not fully aware that ESI is very hard to destroy or conceal. Any efforts to conceal documents or intentionally or inadvertently fail to produce ESI, which is relevant or may lead to the discovery of admissible evidence, will likely be uncovered through electronic discovery. Consider that the expenditures to uncover additional material ESI could be justified depending on the amount in dispute.
Once the identification of the potential location of relevant ESI has been determined, the documents must be retrieved and reviewed before the ESI is analyzed. A determination also will need to be made whether retrieval will be accomplished in-house or by an outside vendor.
Courts are beginning to come down hard on both companies and their counsel and awarding significant sanctions for the failure to preserve ESI and being adequately informed of their obligations to preserve ESI in anticipation of litigation.
Having clear and comprehensive procedures in place for the preservation of ESI is an important step for any business owner or executive in today’s world of electronic discovery. Creating such procedures at the outset could result in significant savings in discovery proceedings and legal fees down the road.