The duty to preserve evidence requires the producing party to make a good faith effort to identify and manage relevant discoverable information. Once the party recognizes when the duty to preserve attaches, the next step is to determine what potentially discoverable information must be preserved. See, Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 336 (D.N.J. 2004) (“…while a litigant is under no duty to keep or retain every document in its possession, even in advance of litigation, it is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation.”). And because the vast majority of business information is now generated electronically without ever being printed to paper, the scope of preservation naturally includes electronically stored information (ESI). Determining the scope of preservation of ESI presents a great challenge and must be balanced with a party’s right to continue to manage its electronic information and operate its business in a relatively normal fashion.
Preservation issues should be addressed at the outset of litigation, and both sides should be prepared to discuss the matter at the initial meet and confer sessions. All parties are responsible for taking steps to preserve relevant evidence, and pursuant to Fed. R. Civ. P. 26(b)(2)(C) need to consider the cost, burden and necessity of preserving the information. In Colorado state court, there is substantially less case law related to preservation, especially of ESI, but a good rule of thumb would be to ensure that one conforms to the requirements under the Federal Rules as well as any unique Colorado requirements.
Following are some suggestions to assist you in determining the scope of preservation:
- Consider the complexity of the case and seek cooperation, common ground, and fiscal reasonableness.
- What is the cost of production compared to the amount in controversy?
- What are the resources of each party? What is the ability of each party to control costs, and what is its incentive to do so?
- What is the relevance of the evidence relative to the claims and defenses in the case?
- Consider the need to protect privileged, proprietary, or confidential information (including trade secrets).
- Know where a party’s electronic information may be found.
- Avoid unreasonable, overly broad, burdensome, or unnecessarily costly requests to produce ESI. Consider collecting data from repositories used by key individuals rather than searching through an organization’s entire electronic storage systems.
- Apply reasonable selection criteria (search terms, date restrictions, folder designations, etc.).
- Determine the need for preservation and production of ESI that may not be apparent to ordinary employees or a party’s records custodians.
- What is the ease of accessing the information, and is it available from other sources?
- Is the ESI stored in such a way that it is unreasonably more costly or burdensome to access? See, Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 324 (S.D.N.Y. 2003) ("...plaintiff entitled to all emails and electronic documents relevant to employment discrimination claim, including those only preserved on backup tapes; however, given burden and expense of restoring inaccessible backup tapes, a cost-shifting analysis is appropriate.”)
- Could a subset or representative sample of the requested ESI be provided to determine whether production of additional information is warranted?
- Identify potentially relevant materials that are most critical or most difficult to preserve/collect.
- Know document retention and destruction policies and practices--as soon as the duty to preserve has attached, immediately suspend any document destruction or data deletion policies until they can be reviewed to ensure compliance with preservation duties.
- Has a party deleted, discarded or erased any ESI after litigation was commenced, or after the party was aware that litigation was reasonably foreseeable? (Spoliation is defined as the destruction or failure to preserve resulting in the loss of evidence in pending or reasonably foreseeable litigation. Silvestri v. General Motors, 271 F.3d 583, 589 (4th Cir. 2001)).
Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.