ACEDS Chapter 3 Questions and Answers – Complete and Accurate

ACEDS Chapter 3 Questions and Answers – Complete and Accurate PRESERVATION As soon as a party reasonably anticipates litigation (or a similar event, such as a governmental investigation) over a subject, that party has an immediate obligation to preserve both hard copy materials and electronically stored information ("ESI" When a party "reasonably anticipates" litigation is judged on a case-by-case basis True - can be before litigation The costs associated with preservation, however, are much less significant than the cost of collecting, reviewing, and producing ESI - True POTENTIAL LEGAL CONSEQUENCES OF FAILING TO PRESERVE ESI Claims of spoliation Four major types of sanctions - not to preserve 1. Monetary, 2. Adverse instructions 3. Limiting of claims 4. Default judgement/dismissal. IDENTIFYING SOURCES OF ELECTRONICALLY STORED INFORMATION 1. Identify sources of ESI - Need person to collect or outside person - keep records of when and why Non-custodial sources (i.e. those not held by a specific individual) Databases and shared resources by interviewing key employees LEGAL HOLD IMPLEMENTATION PLAN legal hold plan will be a written set of instructions that is created in the abstract (that is, before actual litigation arises), and applied uniformly across all matters. Subject matter: notice should outline the subject matter of the dispute or investigation that has given rise to the duty to preserve In writing The legal hold notice is best be in writing. While oral notices are not de facto ineffective or impermissible, they certainly are not prudent. Legal Hold Steps 1. Subject Matter 2. Provide Example of Locations, 3. Addressed to individuals & an give personally. 4. Clear Instructions on how to accomplish. 5. Identify person to whom addressed. 6. Means of confirming receipt 7. Interviews 8. periodic followup 9. release notice 10. Tracking UNDERSTANDING ESI STORAGE LOCATIONS 1. Know who's resposible for tracking the data 2. What data is contained 3. Understand how the storage location works and overwritten. Rule 37 The safe harbor portion of FRCP 37 used to provide that "absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." 2015 amendment to FRCP 37(e) totally rewrites and expands the safe harbor. The new language 1. Upon finding prejudice to another party from loss of the