The “digital age” is not only redefining how business gets done, it is fundamentally altering the litigation landscape. In today’s digital world, electronically stored information (“ESI”) often captures the fundamental facts and proof needed to prosecute and defend claims asserted in all forms of litigation. Think about it, e-mails, PDF documents, audio recordings, database information (QuickBooks, and other software), phone logs, photos, videos, and even social media sites capture critical information that can either prove the wrongdoing alleged or provide exculpatory evidence to those accused of wrongdoing. And while the advent of technology has simplified processes and streamlined digital media and document creation, the same technology can be a double-edge sword – the same technology makes it just as easy to delete and tamper with evidence (both intentionally and inadvertently).
Given the increasingly important role of ESI and the delicate nature in which it exists (it can easily be manipulated even inadvertently), today’s businesses and litigants must take affirmative steps EARLY in a dispute to protect and preserve precious and delicate ESI. How delicate is ESI? As you may know, by simply transferring digital content (such as a PDF document) to an alternative storage location (such as saving on a CD) metadata can be altered, which for example can result in a change to a document’s “creation date” – and if the date a document was created is important in your dispute, you’ll want to make sure appropriate steps are taken to protect and preserve the ESI.
The failure to protect and preserve ESI can not only result in the destruction / alteration of vital information, it can also result in a court sanctioning a party in a number of different ways. For example and among other sanctions, failing to protect / preserve ESI may result in a court: (1) increasing the burden of proof required to prosecute or defend a claim; (2) requiring a party to provide corroborating evidence at trial (beyond just the party’s own testimony); (3) requiring a party to produce documents that he/she had claimed were privileged; (4) awarding attorneys’ fees against the party that failed to protect / preserve ESI; and (5) giving an adverse inference instruction at trial.
When must a person / business entity begin preserving / protecting ESI? Generally, the duty to preserve is triggered at the point in time when litigation is reasonably anticipated, which means the duty to preserve is often triggered before litigation is filed.
What is the scope of the duty to preserve? Courts generally find that a person / business entity is under a duty to preserve what it knows, or reasonably should know, is relevant in the action / potential action, and what is reasonably calculated to lead to the discovery of relevant evidence in the action / potential action.
With the information above you may be wondering what forms of ESI exist. There are literally hundreds if not thousands of forms of ESI. The list below will give you a starting point on what forms of ESI you may not only want to protect and preserve yourself, but also what you may want to inform your opponent (through a document preservation letter) he/she should protect / preserve:
- Digital communications (e.g., e-mail (local and online), voice mail, instant messaging, text messaging, phone logs, social media posts, comments, updates, etc…);
- Word processed documents (e.g., Word, Pages, Word Perfect, Google Docs, etc…documents and drafts);
- Spreadsheets and tables (e.g., Excel, Numbers, Lotus worksheets, etc…);
- Image and Facsimile Files (e.g., .PDF, .TIFF, .JPG, .GIF, etc…);
- Video and Animation (e.g., .AVI, .MOV, MPG, MP4, AVI, etc… files);
- Sound Recordings (e.g., WAV, .MP3, AVI, etc… files);
- Accounting Application Data (e.g., MS Money, Quicken, QuickBooks, Peachtree data files, etc…);
- Databases (e.g., Access, Oracle, SQL Server data, PST, etc…);
- Contact and Relationship Management Data (e.g., Outlook, ACT!, etc…);
- Calendar Data (e.g., Outlook PST, Yahoo, Google, Hotmail, Apple Calendar, etc…);
- Network Access and Server / Computer Activity Logs;
- Online Access Data (e.g., Temporary Internet Files, History, Cookies, etc…);
- Presentations (e.g., PowerPoint, Keynote, Corel Presentations, etc…)
- Network Access and Server / Computer Activity Logs;
- Computer Aided Design/Drawing Files; and,
- Back Up and Archival Files (e.g., Zip, Back up tapes, etc…).
UPDATE: On January 18, 2011, the Delaware Court of Chancery issued “Guidelines” relating to ESI. To read more about these “Guidelines” and other ESI information, click here and scroll down to the second paragraph.
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