2. Electronically Stored Information Electronically Stored Information (“ESI”) is defined as all types of computer based information Common types of ESI include: Email and Email Attachments Word Processing Documents such as those produced by Microsoft Word Spreadsheets including Excel Voice Mail Databases
3. Electronically Stored Information Common Sources or Locations of ESI include: Individual Desktop or Laptop Computers A standard desktop computer can store the equivalent of 40,000 typed pages of information. Mainframe Computer Systems Network Hard Drives Removable Media including Disks, Cartridges and Tapes Personal Digital Assistants Pagers Cellular Telephones and other Handheld Wireless Devices GPS Navigation Systems
4. Discovery “Discovery” is generally defined in the legal context as the process by which attorneys reveal facts and develop evidence in preparation for trial Traditional Uses of Discovery Copies of Correspondence Manuals Reports Blueprints Examples of Discovery Include: Depositions Interrogatories Request for Production of Documents
5. Litigation Holds Companies involved in litigation are required to preserve documents that may be relevant to a dispute A “Litigation Hold” must be implemented to retain documents a company reasonably believes to be relevant to the dispute once a company is on notice of pending litigation.
6. Litigation Holds Failure to implement a Litigation Hold or the failure to properly preserve evidence, including ESI, may result in painful Court sanctions including: The loss of certain defenses Orders to pay an adversary’s attorneys’ fees Adverse Inference instructions to a Jury With the rapid expansion of ESI, several companies have suffered painful sanctions as a consequence of the destruction of ESI.
7. The Federal Rule Federal Rule of Civil Procedure 37(f) provides that “absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information as a result of the routine, good-faith operation of an electronic information system.” The Rule provides a “safe harbor” for companies that have a system or management policy in place for ESI.
8. ESI Management Policy Every ESI Policy should be unique, because every company is somewhat unique. Factors impacting a company’s unique ESI Management Policy include: What record types the business generates and retains Where the records are located Who controls each type of records When records may be destroyed
9. Four Keys for Every ESI Management Policy Every company should have a written record retention policy Every company should understand that it has a duty to preserve records once it knows or should have known of potential litigation Every company should have a plan regarding how records will be preserved once a dispute emerges Every company should make efforts to identify likely difficulties with preserving electronic evidence and prospective solutions
10. Other Issues to Consider in Developing an ESI Management Policy Disaster Recovery Government Regulations Requiring the Retention of Certain Documents Routine Destruction Schedules Selective Destruction may indicate bad faith to a court.
11. Evaluation of an ESI Management Policy Training for all Employees regarding compliance with an ESI Management Policy Each Employee should sign a receipt acknowledging the ESIManagement Policy Periodic Review for Improvement and Continuity with New Technology Periodic Audits
