The Duty to Preserve Electronically Stored Information (ESI) & When It Arises

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The Duty to Preserve Electronically Stored Information (ESI) & When It Arises

If you are a party to any type of litigation, you have a duty under both federal and state regulations to preserve electronically stored information (ESI) as part of the discovery process.

Basically, ESI is any information that has been generated and stored electronically. Under Rule 34 of the Federal Rules of Civil Procedure, ESI “include[s] writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations.”  This may include, but is not limited to:

  • All electronic communications, including emails, texts, instant messages and attachments
  • All documents, including word processing documents, PDFs, presentations, spreadsheets
  • Information stored in a database
  • Social media posts, messages, profiles, images, and other information
  • Images, including photos and videos
  • Information from a mobile device or app
  • Voicemails and other sound recordings
  • Information from a smart device

Rule 34 stipulates that any information that may be deemed relevant to litigation must be preserved and shared with opposing counsel or another party who requests it within 30 days of request. The information must be provided in a format that is easy to read and understand. The only exception to this requirement is if the ESI resides with sources that are difficult to access because of undue burden or cost.

Under new Rule 26.1 of the Arizona Rules of Civil Procedure, once the existence of ESI is discovered or disclosed, the parties involved in litigation must confer to determine when and in what format ESI should be disclosed. This new rule replaces the previous rule treating ESI like hard-copy documents, which are required to be produced to the requesting party within 40 days of discovery or disclosure.

When the duty to preserve ESI arises

New Rule 37(g) of the Arizona Rules of Civil Procedure clarifies when the obligation to preserve ESI arises. The rule states that the duty to preserve ESI begins once a party files an action, learns an action has been filed against it, or “reasonably anticipates” that an action will be filed — whichever comes first.

Under Rule 37(g), “reasonable anticipation” is defined as if a party “knows or reasonably should know that it is likely to be a defendant in a specific action; or serious contemplates commencing an action or takes specific steps to do so.”

If a party to litigation fails in its duty to preserve ESI, the court may order additional discovery to recover or replace it. If the information cannot be recovered or replaced, then the court may impose sanctions on the offending party. If the court deems the failure to produce ESI was intentional and meant to deprive the other party of the use of the ESI in litigation, it may dismiss the action or enter a default judgment.

When business disputes arise, you need experienced legal representation and advice. Williams Commercial Law Group, L.L.P., is a law firm focusing on contract disputes, and business divorce. Contact us at (602) 256-9400 and schedule a time to meet with us today.

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