E-Discovery in Litigation and Records Retention


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E-Discovery in Litigation and Records Retention

  1. 1. E-Discovery in litigation and records retention<br />
  2. 2. Electronically Stored Information<br />Electronically Stored Information (“ESI”) is defined as all types of computer based information<br />Common types of ESI include:<br />Email and Email Attachments<br />Word Processing Documents such as those produced by Microsoft Word<br />Spreadsheets including Excel<br />Voice Mail<br />Databases<br />
  3. 3. Electronically Stored Information<br />Common Sources or Locations of ESI include:<br />Individual Desktop or Laptop Computers<br />A standard desktop computer can store the equivalent of 40,000 typed pages of information.<br />Mainframe Computer Systems<br />Network Hard Drives<br />Removable Media including Disks, Cartridges and Tapes<br />Personal Digital Assistants<br />Pagers<br />Cellular Telephones and other Handheld Wireless Devices<br />GPS Navigation Systems<br />
  4. 4. Discovery<br />“Discovery” is generally defined in the legal context as the process by which attorneys reveal facts and develop evidence in preparation for trial<br />Traditional Uses of Discovery<br />Copies of Correspondence<br />Manuals<br />Reports<br />Blueprints<br />Examples of Discovery Include:<br />Depositions<br />Interrogatories<br />Request for Production of Documents<br />
  5. 5. Litigation Holds<br />Companies involved in litigation are required to preserve documents that may be relevant to a dispute<br />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.<br />
  6. 6. Litigation Holds<br />Failure to implement a Litigation Hold or the failure to properly preserve evidence, including ESI, may result in painful Court sanctions including:<br />The loss of certain defenses<br />Orders to pay an adversary’s attorneys’ fees<br />Adverse Inference instructions to a Jury<br />With the rapid expansion of ESI, several companies have suffered painful sanctions as a consequence of the destruction of ESI.<br />
  7. 7. The Federal Rule<br />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.”<br />The Rule provides a “safe harbor” for companies that have a system or management policy in place for ESI.<br />
  8. 8. ESI Management Policy<br />Every ESI Policy should be unique, because every company is somewhat unique.<br />Factors impacting a company’s unique ESI Management Policy include:<br />What record types the business generates and retains<br />Where the records are located<br />Who controls each type of records<br />When records may be destroyed<br />
  9. 9. Four Keys for Every ESI Management Policy<br />Every company should have a written record retention policy<br />Every company should understand that it has a duty to preserve records once it knows or should have known of potential litigation<br />Every company should have a plan regarding how records will be preserved once a dispute emerges<br />Every company should make efforts to identify likely difficulties with preserving electronic evidence and prospective solutions<br />
  10. 10. Other Issues to Consider in Developing an ESI Management Policy<br />Disaster Recovery<br />Government Regulations Requiring the Retention of Certain Documents<br />Routine Destruction Schedules<br />Selective Destruction may indicate bad faith to a court.<br />
  11. 11. Evaluation of an ESI Management Policy<br />Training for all Employees regarding compliance with an ESI Management Policy<br />Each Employee should sign a receipt acknowledging the ESIManagement Policy<br />Periodic Review for Improvement and Continuity with New Technology<br />Periodic Audits<br />