The “e-discovery” amendments to the Federal Rules of Civil Procedure were implemented in December 2006.  In 2009, California enacted similar “e-discovery” rules.  The adoption of these rules has greatly impacted the landscape for entities that find themselves in litigation in state or federal court.  There is an issue, for example, about the retention of documents that are stored in hard form and electronically.

The federal and state e-discovery rules are predicated in large part on the decision in Zubulake v. UBS Warburg LLC, a case which dealt with a litigant’s duty to preserve and produce documents and electronically stored information (“ESI”).  ESI comes in many forms.  It includes e-mail, voicemail, text messages, word processing documents, spreadsheets, websites, etc.  The duty to preserve ESI obligates a party who knows of actual or probable litigation not to destroy discoverable ESI or places where ESI is stored (e.g., hard drives, flash drives, servers, back-up tapes, etc.)  A party to a lawsuit cannot satisfy its e-discovery obligations simply by printing out hard copies of e-mails or other documents since electronic data (e.g., “metadata”) underlying an electronic document is often just as relevant as the document itself.  “Metadata” is the electronic data that can identify when a document was created, who created it, what changes or modifications to a document were made, who made those changes, when they were made, etc.

As explained in Zubulake, “anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary.  While a litigant is under no duty to keep or retain every document in its possession…it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.”

As for the scope of evidence and ESI that must be preserved, the Zubulake court observed, “[t]he broad contours of the duty to preserve are relatively clear.  That duty should certainly extend to any documents or tangible things . . . made by individuals ‘likely to have discoverable information that the disclosing party may use to support its claims or defenses.’  The duty also includes documents prepared for those individuals, to the extent those documents can be readily identified (e.g., the “from” and “to” fields in e-mails).  The duty also extends to information that is relevant to the claims or defenses of any party, or which is ‘relevant to the subject matter involved in the action.’  Thus, the duty to preserve extends to those employees likely to have relevant information – that is, the ‘key players’ in the case.”

Agencies should have a document retention policy in place that addresses retention of ESI.  Plus, we generally recommend that, if your agency is sued, you: (1) work with your legal counsel to develop a preservation plan related to the lawsuit; (2) immediately suspend the scheduled destruction of all documents that relate to a plaintiff’s claims (if any), and (3) preserve all ESI relating to plaintiff’s claims.