ESI is information stored in electronic form. Today, that includes almost everything. ESI may lurk on computers, servers, cell phones, tablets, CDs, flash drives, backups, etc. Electronically stored information can be easily changed, overwritten or deleted, even without the user’s knowledge. ESI isn't static like a physical document. Destruction of ESI can expose litigants to sanctions for spoliation of evidence.
● Rule 1 – Remember the Scout Moto: BE PREPARED!
Don't wait until litigation to discuss ESI with your clients. Being prepared requires the lawyer to thoroughly understand the client’s ESI, from creation, to content, to storage, to destruction. Make sure your client has a retention and destruction policy and carries it out consistently.
● Rule 2 – Use “Litigation or Legal Hold” Notices
The first and best defense against spoliation sanctions is the Litigation or Legal Hold Notice.
○ When is the duty to preserve ESI triggered?
Once a party reasonably determines that ESI in its custody or control may be relevant to pending or reasonably foreseeable litigation, the party should take reasonable steps to preserve it. Note the duty to preserve attaches when litigation is reasonably anticipated – not when it's initiated.
○ Determine the scope of the Litigation Hold Notice.
The duty to preserve evidence includes any relevant evidence over which the non-preserving entity had control and reasonably knew or could reasonably foresee was material to a potential legal action.” China Ocean Shipping Co. v. Simone Metals, Inc., 1999 WL 966443 (N.D. Ill. 1999).
○ Who gets the Litigation Hold Notice?
Does your client outsource ESI functions, like accounting or web hosting, or share ESI with third parties? They go on the recipient list. The person implementing the hold gets the Notice, not just the client’s contact managing the litigation. The client’s IT and HR personnel also get the Notice. Put it in writing and require acknowledgement of receipt. Send reminders while the hold remains in place. Remove the litigation hold when it's no longer necessary. Send a similar letter to the other side as notice of its duty not to alter or destroy evidence.
● Rule 3 – Collaborate on a Mutually Agreeable Discovery Plan
Discussions with your client and the ESI management policy provide an inventory of ESI. Try to get the same inventory from the other side. Having good inventories will permit an educated and reasonable ESI discovery request.
Be careful what you ask for – you may have to reciprocate. ESI discovery can be expensive. Instead of broad requests like “all emails,” narrow your request to target ESI important to resolve the case.
● Rule 4 – Agreements for Dealing with Waiver and Privilege Claims
Production of ESI requires reviewing lots of data, creating a risk of inadvertently producing privileged information. A Non-waiver Agreement with a “claw-back” provision allows the producing party to undo the production of privileged information. Federal Rule 26(b)(5) establishes a “claw back” procedure in the absence of an separate agreement.
● Rule 5 – Don’t let Spoliation Spoil Your Day
If spoliation occurs during the pendency of the lawsuit or because of noncompliance with a discovery order, the court can impose sanctions under Civil Procedure Rule 37. Anything from a reprimand to dismissal is possible. Also within the courts’ authority under Rule 37 is the adverse inference jury instruction.
By following these five rules, counsel can successfully navigate the dangerous waters of discovery of ESI.