Electronic Discovery and ESI
Since the 2006 FRCP revisions, electronically stored information (ESI) drives pretrial discovery. Sound data retention (per Sedona Conference guidance) plus a litigation hold are essential; where discovery obligations conflict with business practices, discovery usually prevails.
Since the 2006 FRCP revisions, Electronically stored information (ESI) has become the focus of pretrial discovery. ESI takes obvious forms (email, documents) and less obvious ones (databases, web pages, server logs, IM transcripts, voicemail, virtual meetings, social media, thumb drives, micro SD cards). The Sedona Conference is a key source of best practices.
- Sedona email guidance: use interdisciplinary teams across business units
- Continually compare policy against actual practice and close gaps
- Reach consensus on policies while looking to industry standards
- Ensure technical solutions parallel the organization's functional requirements
Discouraging employees from using company email/computers for personal matters - and from doing company business on personal devices - reduces the risk of handing over embarrassing or private data, or of invading employee privacy, when a discovery request arrives.
When a corporate retention policy conflicts with a discovery request, courts apply a three-factor test: (1) the policy must be reasonable on the facts, (2) courts may consider similar complaints against the organization, and (3) courts may evaluate whether the policy was instituted in bad faith. Crucially, even a reasonable policy must be suspended by a Litigation hold once the company is on notice of litigation - discovery obligations generally prevail over conflicting business practices.