The best way to advise your clients of their duties related to electronically stored information (ESI) is to send them a letter after you have received their signed fee agreement.
First, explain that both you and the client have a duty to maintain all ESI until the case is over. This includes backing up, preserving, and not deleting any ESI.
Make sure that your client understands what constitutes ESI. Be broad in your definition and provide specific examples:
ESI includes emails, text messages, instant messages, social media posts, and voicemails, in addition to all digital files. For example, if you are using QuickBooks, Microsoft Money, or other accounting software at home, you have a duty to preserve these files. If you have any questions—before you delete anything, before you throw anything away—remember to contact my office and speak to us. As a general rule, if you have any doubt, keep it.
Tell your clients to backup all of their ESI. Offer to help them if they have any questions or don’t understand what this means. Emphasize that they shouldn’t overwrite, delete, or destroy any ESI without first contacting you.
Similarly, ask them to contact you if they have a hardware failure (such as a hard drive that stops working or a phone that “dies”). They must keep any broken hard drive, phone, tablet, or other electronic recording device until told that they can dispose of it.
Also, remind them to keep all old devices. This means that they can’t turn in or sell an old phone when they’re upgrading. And they must keep old CD’s, DVD’s, flash drives, SD drives, compact flash drives, or any other type of device that’s used to hold a digital photo, video, or audio file.
Make sure to include a stern warning about what could happen if this duty is breached:
There are penalties that the court can impose on you for what it deems to be the destruction of evidence or potential evidence, and the penalties can be very severe. Do not even consider altering old ESI to modify what you believe to be damaging content. If there is content that you think might be damaging, you must alert us at once. The penalties and sanctions include the court issuing sanctions against you, evidentiary sanctions (such as not allowing us to present certain evidence on your behalf and making a decision on issues without any meaningful input from our office), and other monetary sanctions, including ordering you to pay for the re-creation of the lost or damaged ESI, including the cost of a third party to retrieve the material.
The duty to preserve ESI also extends to an attorney’s office; an attorney must act with great care when disposing of hardware if it contains any client’s confidential information. Tell your client that you have the same duties as they do.
At the end of the letter, provide a space for clients to acknowledge their agreement to follow your instructions by signing the letter and returning it to you.
Get the complete sample letter on ESI to send to your clients, along with many other sample client communications, in CEB’s California Client Communications Manual: Sample Letters and Forms.
Other CEBblog™ posts you may find useful:
- How to Drop a Prospective Client Who Doesn’t Pay Your Retainer
- Don’t Forget to Include Client Responsibilities in Your Fee Agreement
- What to Tell a Client When the Case Lacks Merit
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