Electronic Document Preservation For Lawsuits
- E-Discovery Obligations
By Martin Rosenbaum
As soon as litigation is contemplated or threatened,
it is essential for all parties and their counsel to go beyond
paper file searching, and consider what electronic data and
information exists that may need to be disclosed. Rules of
Court generally require all parties to litigation to disclose
to the other parties all relevant documents, whether the documents
are helpful or hurtful to any particular party. Relevance
is the test for disclosure. There are a limited number of
exemptions to this rule. A discussion of these exceptions
is beyond the scope of this article.
Documents are defined in the Rules of Court to include electronic
files and data. Accordingly, in addition to locating and preserving
paper documents, each party to a lawsuit must take reasonable
steps to locate and preserve electronic files containing data
and information that can reasonably be expected to be relevant
in the litigation. Further, a litigant should also consider
whether specific paper or electronic documents are known to
be in the possession of others. Court rules provide specific
procedures to request that such documents be disclosed and
preserved as early as possible.
Once litigation is commenced, a party is mandated to immediately
take reasonable and good faith steps to preserve relevant
documents, including electronic files and data. In respect
of electronic files and data, these steps include the following:
(a) collect all relevant document retention, back-up, archiving
and destruction policies;
(b) issue appropriate instructions to all staff, or at least
to relevant staff, to cease or suspend personal activities
and practices that could result in the destruction or modification
of relevant electronic documents, such as the deletion of
e-mailbox entries or archives;
(c) create litigation copies of potentially relevant active
data sources, for example by means of electronic backup or
forensic copying of the documents, so as to preserve potentially
relevant meta-data; and,
(d) cease or suspend the overwriting of back-up tapes, and
other document retention practices that could result in the
destruction or modification of relevant electronic documents
in the ordinary course of business.
If a litigant anticipates that specific electronic documents,
files or data could exist that are relevant to the litigation
and are liable to be deleted or modified in the ordinary course
of business, that litigant must immediately notify its counsel
of that fact, and take appropriate steps to preserve these
electronic files, documents and data. A litigant should also
consider, as early as possible, whether third parties may
be in possession of relevant electronic files and data, and
seek advice about notifying the third parties to take appropriate
preservation steps.
This article is not intended to be relied on as legal advice.
Anyone involved in litigation, or about to be involved in
litigation, should consult with legal counsel regarding all
of their disclosure obligations that may be applicable to
the particular circumstances.
For more information on this topic contact Martin Rosenbaum,
Lawyer, tel: 416-364-1919, e-mail mzr@rosenbaum.com or visit
http://www.rosenbaum.com
Article Source: EzineArticles.com
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