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E-Discovery Duty to Preserve

Don't Tell Me Show Me Concept
Don’t Tell Me Show Me Concept

There is a duty to preserve electronically stored information (ESI) in many California court cases. ESI includes the data, documents, and materials that are potentially reasonable evidence. Even if it is not admissible directly, it could lead to other evidence that is admissible. This means the electronically stored information must not be destroyed, altered or concealed. This fact remains true because it can be potentially relevant evidence that will likely be a part of litigation.

This means that counsel must act reasonably in the preservation of ESI. The duty extends to many classes of people. These classes include the client, parents, attorneys, partners, employees, officers, directors, divisions, subdivisions, contractors, accountants, auditors, and subsidiaries.

What this means for the attorney is it will be crucial to initiate a legal hold with the client as soon as possible when litigation is anticipated. In PI cases, it is critical to send out a “preservation of evidence” letter at the outset to all interested parties. Beyond that, the legal hold is essential for both the counsel for the plaintiff or the defendant.

The attorney for the plaintiff should send a letter to any of the potential clients or their lawyers. It should be called a notice of the filing of a lawsuit. And one should consider obtaining the issue of a preservation order from the court.

The preservation of evidence should not be left up to the client or their IT department. Metadata can be changed, and the copying of files is another way that can alter these electronic documents. Variations in the electronically stored information can be significant in proving the authenticity or integrity of the stored data.

Great importance should be placed on the precaution of ESI.  There have been sanctions for failure to preserve. It can result in spoliation penalties. It can also result in “doomsday sanctions.” In the event there is a failure to protect the electronically stored data, it can be devastating to the client.

This fact remains true whether it is done through carelessness or intentionally. The attorney involved that did not ensure the preservation order or litigation hold was properly administered may be held responsible by the court. He or she can even get reported to the State Bar Association.

What the Law Requires

The law requires each party to preserve all potentially discoverable electronically saved information. It must be maintained. These laws carry duties imposed that apply to each party and any third parties.

  • The ESI must not be lost due to alteration or deletion or otherwise modified that may be reasonable potential discovery evidence. This discovery includes file fragments or remnants of any information that has been deleted or altered.
  • Procedures must be enacted to protect electronically stored information including any related metadata from data compression, deletion, overwriting or rotation.
  • ESI must be protected from procedures such as disk defragmentation, reformatting and other types of optimization routines.
  • Data storage devices must not be disposed of or media that may be replaced during upgrading.
  • All application programs and utility program copies must be preserved that may be used in accessing, processing, reading, copying or displaying of any discoverable electronically stored information.

Dealing with a client, there can be forensic copies made by a professional of any potential electronically stored evidence, rather than confiscating USB drives, iPods, laptops or other equipment to allow them to continue business. The other thing that is important is to maintain a proper chain of custody record for the ESI.

This custody applies in particular to loose and removable items like Blackberry’s. Logs of everything done should be maintained. Then it may be possible to show the judge the lateness was due to an innocent error, rather than being intentional.

ESI and Metadata

Metadata can be critical, which is data about other data. This data was not an issue with paper documents since the data would have been in the record, such as the date and author. The creation of electronically stored information has changed the way discovery looked at, and while useful, potentially damaging information can be created.

Metadata issues can include:

  • Tracking is potentially damaging changes made to documents.
  • Knowing if there have been modifications when the document was created, accessed, the numbers of revisions and the total amount of time for editing.
  • The ability to follow the internet route of email by viewing the full header.
  • Ability to see who was blind copied on an email (BCC).
  • Knowledge of comments and secret formulas in spreadsheets.

Metadata has a type of digital fingerprint that can change any part of a document, including other metadata. The most significant benefit of metadata is the advantage of doing more effective searches. Some of the metadata can be accessed by going to properties in MS Word Documents and emails in the, to and from fields. These rules can be learned and once learned is an advantage.

The one general rule about ESI is that less information cannot be given a document to the other side without an agreement with that side. This agreement means that when receiving ESI unless waived, all metadata should be handed over.  And then it should be reciprocated by the receiving side, which must then do the same.

The one problem that exists is unless you request the metadata; it is possible only to receive the documents. So unless asking to receive the electronically stored information in the paper form you are in trouble. The way to ensure receiving the metadata is to specify that the file format is a raw native file format.  This evidence would also include the metadata.

Michael Ehline - PI Law Tutorials

Michael Ehline is a highly trained personal injury attorney in Los Angeles, CA. He writes educational articles to help injured consumers.

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