Computer Forensics & E-Discovery Specialist : Electronic Evidence Retrieval L.L.C. : Data Recovery, Hard Drive Retrieval, Deleted Files : New Orleans, Louisiana

The ease at which data in the Information Age can be stored and deleted is both a blessing and a curse.   We create new letters, new invoices, and new emails. We clean out old emails, buy new and bigger hard drives, and archive old reports.  Our IT staff (if we have one) rotates backup tapes. We update databases, usually over-writing what was there before. We delete old files (or at least we should!) to make room for more. We defragment our drives to speed up our computer’s responsiveness. We use spam filters to delete, or at least hide, unwanted email and advertising. 

But what if, in these day-to-day processes, we delete evidence relevant to litigation that is pending or that we should have known about?

The e-discovery amendments to the Federal Rules for Civil Procedure recognize the concept of reusing computer resources and include the concept of a Litigation Hold. As soon as a party knows of, or should have known of, pending litigation, it must stop all activities that could delete relevant information and preserve all potentially relevant electronically stored information (ESI).

As the trial attorney, how do you get the word out to your client to stop deleting potential evidence? The answer is a Litigation Hold Notification. The plaintiff attorney should issue such a notification to his/her client and to opposing counsel. Such notices should also spell out whether there are any requirements to preserve new ESI as well.   In my next blog, I will discuss the need for clients to have a Litigation Hold Plan, but attorneys need to be prepared to ensure that ESI is preserved. In real life, that often means creating a preservation plan for the first time.

But the attorney’s responsibility doesn’t stop with just issuing the letter. As Judge Scheindlin told the UBS Warburg attorneys in the Laura Zubulake case, counsel has an affirmative responsibility to ensure that ESI is being preserved. This affirmative responsibility means repeatedly contacting the major players to remind them of the responsibilities and auditing their compliance. A single letter just won’t do it in the light of Judge Scheindlin’s ruling.

One solution is for the trial attorney to have an e-Discovery Liaison or e-Discovery Coordinator. This can be someone in the firm or an outside technical expert. Another approach is to have a team (I often call it a SWAT team) within the client’s organization. This team has the responsibility for creating, documenting, and monitoring the company’s ESI preservation policy.

One thing is clear, the role of the trial attorney is changing.  I believe the attorney who knows the most about e-discovery, and about this changing role, will have an upper hand in litigation.

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When I start speaking at conferences and CLE seminars on the need for ESI Plans (also called Document Retention and Destruction Plans), eyes start glazing over.  I know it is not a glamorous topic.  I know that it seems like expensive drudgery.  I know it doesn't seem contribute to a client's ROI.  But cases are being lost because of missing and inadequate ESI Plans.

In Jerily Quon et al. v Arch Wireless and the City of Ontario, et al. the issue was text messages sent and received on City-owned pagers.  These pagers had a 25,000 character limits that were sometimes exceeded.  Employee text messaging was not monitored or audited, although it was supposed to be for City business and not for personal benefit or gain.  Employees were told that their usage would not be audited if they paid the overage any time there was one. They had been paying the overages when they occurred. 

The "bill collector" got tired of this role and conducted an audit, ostensibly to see if the 25,000 character limit was sufficient.  A major point in the opinion was that the employees had a reasonable expectation of privacy because of the "no-audit-if-you-pay-overage" policy.  Since several of the messages were of a sexual nature and between a husband and wife, I assume they did expect privacy.

The Ninth District ruled that the City had no right to the text messages.  As with many opinions, the discussion is complex and involves multiple concepts and precedents.  I'll let attorneys mull this one over, but I will comment on its practical implications. 

How did it happen?  The ESI policy was out of date and made no reference to text messaging.  The "Bill Collector" established a policy in practice that was not in writing and not approved.  The written policy was clear that employees had no expectation of privacy concerning files stored on the City's servers, but the text messages were stored on the Arch Wireless servers. 

I've read at least one blog arguing that now employers have to start paying to archive anything their employees store at a third party location.  It's not the third party location that is the issue, it is the ESI policy that told employees they had a reasonable expectation of privacy at that third party site.

I'm interested in hearing about what organizations are actually doing to create and update their ESI policies AND what law firms think their role should be in encouraging the practice.

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