As anyone who has been involved in a lawsuit knows, one of the first things a party – whether plaintiff or defendant – is hit with is a Request for Production requiring production of all types of information allegedly related to the controversy. These document requests now routinely include requests for electronically stored information (ESI). Many companies, and even some lawyers, believe they can avoid searching for – much less producing – ESI simply by either hitting the “delete” button, or by claiming that it is unduly burdensome to retrieve. Others erroneously rely to their peril upon document retention/destruction policies which provide for the periodic, permanent destruction of ESI.
In light of recent sanctions, including six-figure fines and imprisonment of executives, litigants with dubious claims or defenses are relying more and more on “gotcha” sanctions against an otherwise innocent party simply because it failed to take prompt steps to preserve and retrieve ESI.
In virtually all courts, judges now expect – if not require – parties to place “litigation holds” on all relevant information – specifically including ESI. They also expect the parties to unilaterally suspend document retention/destruction policies that might destroy ESI that “may” be relevant to the controversy. They expect litigant and lawyer to take those steps without first being ordered to do so by the court.
Furthermore, courts are increasingly refusing to simply accept a party’s assertion that it cannot locate electronically stored materials. Courts require the parties to hire ESI forensic experts to establish protocols for searches throughout the party’s computer systems and data bases. These protocols become subject of pre-trial challenges regarding whether or not they are sufficiently thorough. Some trial courts have required a party to turn over computer hard drives to independent third parties to examine.