Electronically stored information (“ESI”) has become the primary focus of document discovery in all types of litigation. Because electronic data can easily be overwritten and purged – whether deliberately or inadvertently – it is critical to act quickly to have relevant ESI preserved. As soon as litigation is anticipated, a preservation letter should be sent to the opposing party to maximize the available information to help you make your case.
Sending a preservation letter can, and often should, occur even before you file your case. Time is of the essence when the opposing party is a company that has or may have a document retention policy involving routine destruction of electronic documents. Prompt action is equally critical in any case that involves continuing usage of pertinent electronic devices, which may occur with both corporate and individual litigants. When prompt action is taken, the opposing party can manage the electronic evidence better and make necessary preparations in response to the request for discovery.
The preservation demand letter should cover several subjects. First is the types of data covered by the demand. Data can be obtained in several forms: active data (currently accessible data from a computer), replicant data (data derived from electronic archives and automatic backups), residual data (deleted or unallocated data on a computer), and metadata (data about electronic data that includes dates of creation, alteration, deletion, who accessed the data, and from where).
The second subject is devices and custodians. Specify the likely electronic devices that may contain relevant data, such as home or work desktops, external drives, servers, laptops, mobile devices, backup tapes, etc. Where known, you should list the individuals that may be involved in the case, identifying them by name and/or capacity.
Finally, the demand letter should request that the opposing party preserve all possibly relevant data. This may involve suspending normal document retention policies including routine document destruction, recycling of backup tapes and disk defragmentation or compression. Additionally, the opposing party should instruct employees to not delete any potentially relevant ESI. Parties have a duty to preserve relevant electronic evidence for discovery, and failure to respond to the request may subject the opposing party to sanctions.
You should anticipate issues that may elicit objections. For example, if you ask for “all data” to be preserved, the court is likely to be sympathetic to an objection that the request is overly broad and creates an undue burden or cost. Instead when requesting preservation of data be specific when possible, such as identifying individuals and requesting that any storage media for those individuals be imaged and/or identifying relevant timeframes. Finally, as a practical matter when drafting the letter you should always keep in mind that anything you ask of the opposing party can be asked of you.
Consult with your forensics or eDiscovery provider early in the process to help you understand the fundamentals of obtaining electronic information. When choosing an expert, consider one who can provide a myriad of services, from composing the preservation letter to serving as an expert witness during trial. Preparing for eDiscovery may seem a laborious task, but understanding the course of action and hiring a qualified expert will always set you in the right direction.