Electronically Stored Information: Know When to Hold It and When to Hit Delete

Lawyers and their clients may find the preservation and production of electronically stored information to be a confusing and expensive undertaking. Many large corporations generate enormous amounts of electronic information that often becomes obsolete and difficult to recover. Although federal courts have addressed the preservation obligations of lawyers and their clients, Wisconsin courts have not specifically addressed these issues in the electronic discovery context. As a result, parties with significant amounts of electronically stored information are often unsure about their preservation obligations and the tools that are available to assist in this process.

This article addresses preservation by use of litigation holds and document-retention policies. First, the article outlines the parameters of the obligation to preserve electronically stored information and explains how a litigation hold can help a party meet this obligation. The article then defines and explains appropriate use of a document-retention policy in regard to electronically stored information. Finally, the article demonstrates how appropriate use of a document-retention policy and a litigation hold can invoke the safe-harbor provisions of Wisconsin law and insulate the producing party from liability for inadvertent destruction of electronic evidence.

The Duty to Preserve Electronically Stored Information: The Litigation Hold

The law is well settled that a person or entity that reasonably anticipates being involved in litigation is required to preserve all potentially relevant information until the matter is concluded.1 This law has been in place for many years and applies directly to electronically stored information.2 However, electronically stored information differs in some ways from traditional paper records: electronic data is voluminous, is easily disbursed, and can be deleted or modified by the routine application of basic computer systems. Electronically stored information can be stored in many formats, may be difficult to locate, and sometimes is obsolete. Therefore, different principles govern the retention, preservation, and production of electronically stored information.

The proper application of these principles requires appropriate preservation efforts. Thus, a party must take immediate steps to preserve electronically stored information once litigation is reasonably foreseeable.3 Although courts do not expect perfection in this regard, it is often difficult and expensive to thoroughly preserve all electronically stored information that might be relevant to a discovery request. Meeting basic preservation obligations, such as issuing a litigation hold, identifying key players, and ensuring that records are preserved, is an important first step.4 Next, counsel should ensure that document-deletion policies are immediately suspended until the search for responsive records is complete.5 If these steps are followed, the producing party will be in a much better position to defend against accusations of spoliation or bad faith.

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Source: wisbar.org
By: Timothy M. Edwards