When most people think about discovery in a civil case, they probably imagine attorneys exchanging documents, taking depositions, and answering interrogatories. Today, however, an enormous amount of potentially relevant evidence exists electronically. Emails, text messages, social-media posts, photographs, cloud files, search histories, and even metadata can become important evidence. This creates a significant question during pretrial proceedings: When does a party have a duty to preserve electronically stored information?
Under Federal Rule of Civil Procedure 26, parties must discuss discovery and preservation issues early in the litigation. The rule specifically recognizes the importance of addressing the preservation and production of electronically stored information when developing a discovery plan. This can be complicated because electronic information is constantly being created, modified, automatically deleted, or overwritten.
The duty to preserve becomes especially important when litigation is pending or reasonably anticipated. Rule 37(e) provides that if electronically stored information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, courts may impose measures to address the resulting prejudice. More serious sanctions, such as an adverse inference or dismissal, require a finding that the party intended to deprive the opposing party of the information.
This raises an interesting issue: How much information should a person or business realistically be expected to preserve? It would be unreasonable to require someone to permanently save every email, text, photograph, or computer file simply because a lawsuit might someday occur. The federal rules recognize this by focusing on taking “reasonable steps” rather than demanding perfection.
At the same time, allowing relevant evidence to disappear can undermine the fairness of the litigation process. For example, deleting potentially relevant text messages after learning that a lawsuit is likely could create serious problems, even if the deletion occurs through an ordinary phone setting.
Ultimately, electronically stored information demonstrates how technology has changed the discovery stage of civil litigation. Attorneys must think about preservation early, understand where their clients' information is stored, and make reasonable decisions about what needs to be protected. As digital evidence becomes even more central to civil cases, courts will continue to face the difficult balance between preserving evidence and preventing discovery from becoming unnecessarily expensive and burdensome.
Question: Where should courts draw the line between a reasonable duty to preserve electronic evidence and an unreasonable expectation that parties save everything?
Sources:
Great post! In response to your question regarding where the courts should draw the line between a reasonable duty and an unreasonable expectation to preserve everything, I think the standard generally depends on scope, notice, and proportionality rather than an attempt to capture every digital footprint. The duty does not require backing up every server or phone in a company, it only applies to information that is related to the specific claims and defences in issue when it is reasonably foreseeable that litigation will take place. According to Rule 26, discovery must be proportional to the needs of the case, so the courts consider factors such as the amount in controversy and the actual cost or burden of preservation. It would be entirely unreasonable to expect a small local business to keep years' worth of unrelated digital data, whereas it is standard practice for a large corporation to secure its key files during a major contractual dispute. I think the line is crossed from reasonable to negligent when a party is aware that litigation is coming and simply allows its standard auto-delete or regular destruction policies to delete the relevant files without first putting in place a targeted litigation hold. In the end, I’m sure courts do not expect perfection or the hoarding of digital data, but they do expect the parties to take reasonable and appropriate steps to protect the information that actually matters once the warning signs appear.
ReplyDeleteI think that the duty to preserve evidence arises when a party can reasonably infer that they may be subject to litigation. Like Evelin stated, if a party is aware that litigation is imminent and fails to take steps to keep records, like stopping an auto-delete function or actively destroying files, the line has pretty clearly been crossed.
ReplyDeleteMy experience is that organizations need a strong data retention policy and robust mechanisms to enforce it. Some documentation may need to be kept for a certain period of time, for tax reasons, etc. However, it is important not to hold onto data longer than is required. All that does is expose an organization to more litigation risk. I have seen companies hold onto records (both paper and digital) for too long. However, once that litigation hold hits, you lose the opportunity to destroy the information, even if it was data that was held beyond your company's published policy.
ReplyDeleteAlso, I forgot to say, Great Post Meghan! It was well-covered and you asked great questions!
DeleteThis post and our readings reminded me of my undergraduate studies in Health Information Management and how medical facilities retain both paper and electronic records for different periods depending on factors such as age, type of record, and applicable regulations. It also made me think about my current work in higher education and how student information is accessed, stored, and managed under different institutional, state, and federal requirements. I think the duty to preserve electronic evidence must be considered on a case by case basis because not all information is governed or stored in the same way. Courts should consider whether litigation was reasonably anticipated, whether the information is relevant and still accessible, and whether the party took reasonable steps to preserve it. I do not think parties should be expected to save everything indefinitely, but once information may reasonably become evidence in a legal matter, there should be an obligation to preserve what is relevant and proportional to the case.
ReplyDeleteI agree with Tanisha, and her comment builds on Meghan's point about Rule 26(f), which requires parties to confer early about discovery and preservation. Because ESI is constantly created, modified, and automatically deleted, legal teams must stay current on the rules governing it.
ReplyDeleteMeghan asks where courts should draw the line, and I wonder if she means when the duty attaches. That question seems fairly settled: the duty arises when litigation is reasonably anticipated, and Rule 37(e) requires "reasonable steps," not perfection.
I think what's less clear is what must be preserved. Rule 34 defines ESI broadly enough to include wearable data, app logs, cookies, smart home devices, and messaging apps, and courts have already admitted wearable data as evidence. With one person generating data across dozens of devices daily, much of it held by third parties, in our modern world, I think the question of what to preserve is becoming more important than when or where, given the seemingly endless Internet of Things evidence available at any moment.
This is a very thought provoking post :) I thought I would bring in perspective I have gained by working in the criminal justice system, although your post is pretty specific, to see what is applicable. One of my main responsibilities is actually taking the physical files that we have had for years and converting them and uploading them into our online database. In this project, it is crucial that all of the necessary documents are converted and uploaded accurately to ensure that all vital information is accessible during the retention period. There was even a time (without providing any specifics) in which we had the only copy of an extremely important document, and the situation surrounding this individual's incarceration unknowingly became reliant on our retention of this document.
ReplyDeleteNow I understand that BOPP would have different duties to retain information than the average person. However, I do believe there is something to be said about the fact that the better information that any decision-maker has, the more that they would be able to consider the 'full picture' when making their decision.