By: George J. Taylor

George J. TaylorGone are the days when the production of documents for litigation purposes only entailed the delivery of voluminous banker boxes.  Technology has made a once relatively simple task very complex because of the number of electronic devices we use on a daily basis, and the methodology in which those devices store information.  This is Part I of a three part series on the topic of e-discovery.  The purpose of Part I is to familiarize the reader with both the concept of e-discovery and the technical terms that go along with it.  E-discovery, or electronic discovery is the process of identifying, preserving, collecting, preparing, reviewing, and producing electronically stored information (“ESI”) in the context of the legal process.

ESI refers to information that is stored electronically, regardless of the media or whether it is in the original format in which it was created, as opposed to stored, in hard copy.  ESI includes information stored on hardware such as back-up tapes, servers, computers, laptops, PDA/smartphones, and voicemail systems, and information stored within software like accounting data, and word processing documents.  ESI also includes e-mails, text messages, and instant messages that may be contained on office computers, laptops, home computers, or PDA/smartphone devices.    

If you are involved in litigation, or even anticipated litigation, your legal counsel should send you a litigation hold plan as soon as the lawsuit is commenced, and in some cases before, in order to ensure that records are maintained and not destroyed that may be relevant to the litigation.  As soon as you receive the litigation hold plan is received, all document destruction policies and procedures should be suspended.  The failure to properly preserve and maintain relevant documents and materials, also known as spoliation, can result in severe court sanctions, including but not limited to, monetary sanctions, striking of pleadings, and instructions to the jury that could negatively impact your case.  What information may be relevant?  From an evidentiary standpoint, relevant evidence is evidence tending to prove or disprove a material fact, and this is frequently a topic that litigators argue about ad nauseam.  In short, do not deviate from the litigation hold because you think something is not relevant to the litigation.  Your duty to preserve information is not intended to impose excessive and unnecessary burdens, and if the specter of such a burden rises, your legal counsel has tools in its toolbox to prevent such a threat from becoming a reality.

Depending on the size of your organization, preserving and maintaining documents and materials during the litigation will require working with your IT personnel, and may even require hiring an IT consultant to work with your legal counsel to make sure that no relevant materials are destroyed.  It is imperative that your legal counsel understands how your electronic data is stored and maintained, because without that knowledge the litigation hold plan may not be successful.  Additionally, opposing counsel may request ESI be produced in a format that you do not use, in which case your legal counsel would object because the request is for a format other than what is ordinarily maintained.

Please look for Part II of this series that will be discussing metadata, which is data about data, and the three types of metadata.  This is truly a fascinating area of e-discovery that will open your eyes to what additional and possibly unintended information you may be sharing when you send files electronically.

I will conclude this article as I always do by providing sound legal advice – seek the counsel of an attorney if you have any questions about e-discovery.  Failure to do so could be costly.

The material appearing on this blog is meant to provide general information only and is not a substitute for nor is it legal advice to you.  With regard to specific law issues, readers of this article should seek specific advice from legal counsel of their choice.  Articles may not be reprinted without the express permission of Brinkley Morgan. 

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