As lawyers typically pride themselves in being careful and attentive to detail, perhaps nothing is more disconcerting than the realization that you or your client may have failed to take appropriate steps to preserve e-mails, text messages, or other forms of electronically stored information (“ESI”) for use in litigation. Although there are a number of reported instances in which a litigant deliberately destroyed ESI in an effort to hide evidence or gain perceived advantage in litigation, such egregious misconduct thankfully is rare. The far more common problem that practitioners face is the inadvertent deletion of ESI due to an untimely implementation of an effective “litigation hold” on the electronic files of the custodians pertinent to the case. Although most practitioners routinely advise clients to implement a litigation hold once a suit has been filed, many overlook that there exists a pre-suit duty to preserve ESI that may attach as soon as litigation can be “reasonably anticipated.” Failure to implement a litigation hold promptly upon receipt of a pre-suit demand or cease-and-desist letter, for example, can result in the inadvertent loss of ESI before the case even starts — information that is often just as likely to be helpful, as opposed to harmful, to your client’s case. Once the duty to preserve ESI attaches in a civil case, failure to take reasonable steps to implement an effective litigation hold can lead to expensive and time consuming discovery disputes and claims for sanctions.

Click here to read the full article in The Defense Line written by Jack McCann and Megan McGinnis.