Jan 5, 2019

E-Discovery Duty to Preserve


Don't Tell Me Show Me Concept
Don't Tell Me Show Me Concept

There is a duty to preserve electronically stored information (ESI) in many California court cases. ESI includes data, documents, and materials. Even if it is not admissible directly, it could lead to other admissible evidence. You must not destroy electronically stored information, alter or conceal it. Anything is potentially relevant evidence. So it will likely be a part of litigation.

This means that counsel must act reasonably in the preservation of ESI. The duty extends to many classes of people. These classes include the client, parents, attorneys, partners, employees, officers, directors, divisions, subdivisions, contractors, accountants, auditors, and subsidiaries.

Preservation of Evidence Letter

In PI cases, it is critical to send out a "preservation of evidence" letter at the outset to all interested parties. But a legal hold is essential for both the counsel for the plaintiff or the defendant.

The attorney for the plaintiff should send a letter to any of the potential clients or their lawyers. So this will be a notice of the filing of a lawsuit. And getting a preservation order from the court is often the smart move.

Also, don't leave the preservation of evidence up to the client or their IT department. Metadata remains easily alterable. And copying of files onto paper is another way to alter these electronic documents. Also, variations in the electronically stored information can prove the authenticity or integrity of the stored data.

There have been sanctions for failure to preserve ESI. It can result in spoliation penalties. It can also result in "doomsday sanctions." If there is a failure to protect the electronically stored data, it can be devastating to the client.

A careless, intentional, or reckless deletion matters not. The attorney failing to ensure the preservation order or litigation hold can be in trouble. Also, the State Bar Association could disbar or suspend the lawyer.


What the Law Requires

The law requires each party to preserve all potentially discoverable electronically saved information. These laws carry duties imposed that apply to each party and any third parties.

  • ESI cannot be altered or deleted once on notice. File fragments or remnants of any altered or deleted information remains discoverable.
  • Procedures must be enacted to protect electronically stored informatiremainon including any related metadata from data compression, deletion, overwriting, or rotation.
  • ESI must be protected from procedures such as disk defragmentation, reformatting, and other types of optimization routines.
  • Do not dispose of data storage devices. Media often gets replaced during upgrading, so keep that in mind.
  • All application programs and utility program copies must be preserved. Anything used in accessing, processing, reading, copying, or displaying remains discoverable.

Also, professionals can make forensic copies of any potential electronically stored evidence. So that way, you can avoid confiscating USB drives, iPods, laptops, or other equipment. So now both sides can continue the business. Most of all, maintain a proper chain of custody record for the ESI.

This custody applies in particular to loose and removable items like Blackberry’s. Maintaining logs remains vital. Then it may be possible to show the judge the lateness was due to an innocent error. At least that way, it wasn't intentional.


ESI and Metadata.

Metadata can be critical, which is data about other data. This data was not an issue with paper documents since the data would have been in the record, such as the date and author. Electronically stored information has changed discovery rules. For example, metadata, online searches for porn, can embarass you.

Metadata issues can include:

  • Tracking is potentially damaging changes to documents.
  • Modifications of document creation dates, accessed, the numbers of revisions, and the total amount of time for editing remains discoverable.
  • The ability to follow the internet route of email by viewing the full header.
  • This can identify those people blind copied on an email (BCC).
  • Knowledge of comments and secret formulas in spreadsheets.

Digital Fingerprint

Metadata has a type of digital fingerprint that can change any part of a document, including other metadata. The most significant benefit of metadata is the advantage of doing more effective searches. Some metadata remains accessible in "properties" in MS Word Documents. Also, some emails in the "to" and "from" fields are accessible. Once learned, these rules can help you win.


Without an agreement, you have to turn over everything on your hard drive. The one problem that exists is unless you request the metadata; it is possible only to receive paper documents. So you must ask for the data in electronic form. If not, you will be digging through piles of paper. So specify that the file format is a raw native file format.  This evidence would also include the metadata.