Why Your Computer Can Be Your Worst Enemy in Litigation – Part 3 in a 3 Part Series

Posted on May 29, 2011

Do not assume that you can avoid producing damaging evidence, or avoid the burden of searching for relevant, electronically stored information (ESI) simply by hitting a delete button or allowing the documentation to be periodically destroyed by pre-established document retention policies. This is the easiest way to have harsh sanctions and potentially a catastrophic judgment rendered against you.

The rules differ depending upon whether you are in state court or federal court. Furthermore, the rules differ among federal courts depending upon what region of the country (Circuit) your case is pending. One thing all courts have in common is that they require parties to take immediate steps to preserve ESI as soon as they have reason to believe that litigation may be on the horizon.

Accordingly, if you are even considering bringing a lawsuit, the court will expect you to promptly take steps to preserve ESI. If you are likely to be named as a defendant in a lawsuit, the courts will not allow you to wait until after you are served with the petition or discovery requests. You will be expected to take steps immediately after the first demand letter or other indication that you may be sued.