Electronic evidence has become an important component of modern litigation. While legal disputes once focused primarily on paper documents and written correspondence, today, many of the important communications and records are now digital. Many clients do not realize the potential consequences of deleting electronic information after a dispute arises. In fact, disputes are often shaped by these potential digital communications long before the lawsuit is even filed.
Courts refer to this type of evidence as electronically stored information (ESI), which may include cloud documents, workplace communications such as Teams or Slack, computer files, metadata, emails, texts, and social media posts and messages. Electronic evidence is often used to provide a timeline of communications and events that can be valuable in a dispute.
Under the Federal Rules of Civil Procedure, Rule 34, ESI is subject to discovery, and preservation duties can arise once litigation is reasonably anticipated. Pursuant to Rule 37(e), parties are usually expected to take reasonable steps to preserve potentially relevant electronic information. Businesses often issue a litigation hold, which is a formal directive that suspends routine data destruction and preserves evidence from being altered or deleted when litigation or investigations are reasonably foreseeable.
Failure to preserve electronic evidence can potentially lead to severe consequences during litigation, such as monetary sanctions, dismissal of the case, default judgments, discovery disputes, reputational harm, and increased litigation costs. Regardless of whether electronic evidence was intentionally altered or deleted, disputes arising from ESI can complicate the litigation process. Thus, as the use of electronic evidence continues to evolve alongside litigation, early attention to preservation of electronic evidence is crucial. Both businesses and individuals facing potential legal disputes should look into implementing preservation measures once litigation isreasonably anticipated. Overall, proactively preserving digital records helps protect legal interests and allows your legal team to build a strong case. If you are anticipating litigation or have questions regarding the preservation of ESI, please reach out to Porter Thomas Grabell &Baumwoll P.C. for a consultation.
