Electronically stored information is so easy to alter or delete without a trace, which is particularly challenging when that information is evidence in a lawsuit. How do you make sure that this virtual evidence stays put?
When your case involves electronically stored information and you don’t want it to disappear with a touch of the delete button, a preservation order in the form of an injunction from the court at the outset of the litigation might be just what you need. See Dodge, Warren & Peters Ins. Servs., Inc. v Riley (2003) 105 CA4th 1414, 130 CR2d 385.
A preservation order will require that sources of electronically stored information are preserved pending discovery. At a minimum, the order should require preservation of all versions of relevant word processing documents, databases, graphics files, e-mail, data compilations, voicemail, and schedules, regardless of whether they are in networks, personal computers, laptops, magnetic tapes, or disks.
A preservation order may also require that files that have already been deleted, but are retrievable through reasonable means, be immediately retrieved and produced.
Make sure that the order is not overly burdensome by being too broad or even technically impossible, because the entity subject to the order may come back with a claim that it cannot comply or it may ask the court to place the financial burden of compliance on you. See Toshiba Am. Electronic Components, Inc. v Superior Court (2004) 124 CA4th 762, 772, 21 CR3d 532.
If the responding party doesn’t comply with the order, you can seek judicial relief, including sanctions. See Cedars-Sinai Med. Ctr. v Superior Court (1998) 18 C4th 1, 12, 74 CR2d 248; CCP §§2023.010-2023.040.
As an alternative to, or in advance of, a formal preservation order, consider sending the responding party a letter that specifically details the type of electronically stored information sought and potential sources of that information. Because this letter can be sent at the outset or even in advance of litigation, it provides early notice to the opposing party, which may regularly delete electronic documents in the ordinary course of its business.
But be prepared that a broadly worded letter may spur the recipient to move for a protective order. You may find it more helpful for counsel to reach agreement with each other about, e.g., the format in which electronic evidence will be produced.
And don’t forget about third party witnesses with electronic evidence. They are not under the same obligation to preserve potential evidence as a party, but you may want to send a preservation letter to an essential third party witness, after weighing the potentially greater likelihood of preservation against the potential of intentional destruction once the third party is put on notice.
On preserving electronic data, including a sample “legal hold” letter that can be sent by an entity to the custodians of its electronic data, turn to CEB’s California Civil Discovery Practice, chap 4. On obtaining an injunction, go to CEB’s California Civil Procedure Before Trial, chap 32. On the duty to preserve evidence, check out my earlier blog post Don’t Hit That Delete Button!
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