The Federal Rules of Civil Procedure were ammended in 2006 to encompass the ever expanding world of electronically stored informatoin (ESI). These new discovery rules relating to ESI are commonly refered to as electronic discovery, or e-Discovery.
Clients have a responsibility toward ESI long before any litigation. The concepts of the Electronic Discovery Reference Model (EDRM) indicate that Information Management is the first step in e-Discovery and that includes having a “reasonable” retention and destruction policy in place. The Safe Harbor provision of Rule 37 is not available to a party that does not have a routine, good-faith electronic information system.
A duty to preserve not only arises from a litigation hold, but also when litigation is reasonably anticipated. At such a time, the client’s retention and destruction policy should be halted and/or copies of potentially relevant evidence should be duplicated from any storage media before being destroyed if it might contain ESI relevant to the cause.
While some courts require the intentional and actual suppression of ESI to be spoliation, others consider the mere failure to halt a retention and destruction policy, pursuant to the duty to preserve, as being spoliation. This can lead to sanctions, and/or ruling(s) of adverse inference. There is an increasing trend in courts around the country to be less forgiving.
Some would consider that these concepts create an implied duty for an attorney to investigate and understand their client’s retention and destruction policy early in representation. This obviously requires a higher burden of technical knowledge for the attorney, but we are well into the information age. So, now is the time for attorneys to make sure their clients pay close attention to ESI and have the necessary policies and systems in place to prevent issues in any possible future actions.
This website will continue to provide resources and information to keep you informed, and when you really need to speak with an attorney regarding e-Discovery we can also help with that.