Much has been written about the duty to preserve electronically stored information (ESI) -- it's expensive, challenging given the breadth of organization's IT infrastructures, and requires cooperation and communication among departments (legal, IT and records) that do not usually see each other as partners, but rather as clients. Meeting the legal duties imposed by the Federal Rules of Civil Procedure to preserve, collect and produce ESI in litigation situations now requires a new way of thinking. Why? Because in order to meet the duty to preserve ESI (we'll focus on ESI here as paper is easier to get your hands around, literally), organizations have to do each of the following steps for each separate matter:
1.To issue a written legal hold;
2.To identify all of the key players in the matter and ensure that their paper and electronic records are preserved;
3.To cease the deletion of email or to preserve the records of former employees that are in a party's possession, custody or control; and
4.To preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information is not available from other sources.
Those are the requirements outlined by U.S. District Judge Shira Sheindlin in her most recent highly publicized decision of Pension Committee v. Banc of America Securities, 685 F. Supp. 456 (S.D.N.Y. 2010). In and of themselves, those steps don't seem that hard to implement. (And they are not new -- she outlined them in the Zubulake cases in 2004.) But they really represent a new way of approaching discovery -- thinking about it as soon as an organization has notice of a dispute, as opposed to waiting until they receive requests for the production of documents. And why is that important? Because 99 percent of the information created today is created electronically, and those electronic systems that store the ESI are sometimes set to overwrite it after a certain period of time. If you don't identify it early on and take steps to preserve it, it may be gone. And, if you're in federal court in New York, and you allow ESI to be deleted or destroyed after you are on notice to preserve it, you could be found grossly negligent and be subject to sanctions. Just like the plaintiffs in Pension Committee.
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Source: Westlaw News & Insight
By: Kelly Twigger