a party to a lawsuit, you need to know
about the discovery of electronically
stored information (ESI), also known
as e-discovery. Why? Because the
requirements to preserve and produce ESI
are quickly evolving and have often taken
over lawsuits as if e-discovery has a life of
its own. This article will address the basics
of e-discovery so that your business can
start taking steps to minimize its impact.
arbitration proceedings when parties
are required to exchange information.
Before computers and other electronic
devices were regularly used in business,
company to look through its paper files
for relevant documents, including letters,
internal memoranda, and the like, which
would then be copied and provided to the
other party or made available for copying.
As businesses started using computers
to create and store company information
and email to communicate, a new treasure
trove of relevant documents emerged,
namely, the documents that were stored
on the company's computer. Before
the widespread use of text messages,
communications were limited to emails,
and email communication was also limited
as many companies preferred faxes and
snail mail instead. Thus, in its infancy,
it was easy to produce ESI because the
volume of ESI was minimal. As hard
drives increased in storage capacity
and more companies relied on a shared
computer network rather than stand-alone
computers, companies realized the benefit
of storing information electronically as it
would allow them to reduce the amount of
paper.
Unfortunately, the pervasive use
of electronic devices has created an
explosion of ESI. ESI has now grown
from merely reviewing and producing
emails to scouring all of a company's
electronic devices for evidence, in the
form of documents, emails, text messages
and instant messages. These are not
merely stored on a company's individual
computers or server, but also on other
electronic storage devices, including
external hard drives, tablets, laptops and
cell phones. The bigger the company,
the more bytes of information that need
to be scoured. E-discovery thus now
encompasses the discovery of information
stored on all of these electronic devices.
of ESI
Procedure and Federal Rules of Civil
Procedure (AFRCP) permit e-discovery
in pending litigation. The rules for
e-discovery in California can be found
at Code of Civil Procedure 2019.040
[applying the discovery rules to ESI],
2031.010(e) [party may demand
production of ESI], 2031.210 [objecting to
discovery of ESI], 2031.280 and 2031.285
[production of ESI]. In federal actions,
the rules can be found at FRCP Rules
34 [permitting production of ESI] and 37
[failure to cooperate with discovery]. In
fact, virtually all states have similar laws
that permit the discovery of ESI.
Have to be Produced
with issues surrounding the discovery
of ESI when first notified that a lawsuit
may be filed. At that time, company
representatives and counsel should get
together to determine if there is ESI
that relates to the claim. If there is any
possibility that there is, the company
should institute a "litigation hold." This
is the process by which the company
identifies any sources of ESI that may be
discoverable (i.e., may be relevant or lead
to the discovery of admissible evidence),
and then take affirmative steps to preserve
the ESI. This may be difficult.
Once a litigation hold is in place, it is
important to take steps to make sure that
the litigation hold remains in place. Why?
Because if ESI is destroyed once you know
a claim may be made for which ESI may
have to be produced, the court may make
in complex business, construction, banking,
consumer finance and real estate litigation and
ADR (alternative dispute resolution).
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