Because businesses store so much information electronically, lawyers and courts are increasingly more detailed in their demands for electronic documents and data. This article gives you practical tips and considerations about electronic data discovery (EDD), including preservation, discovering computing environment information, court rules and case law authority concerning EDD requests, discovery limitations, cost allocation, and EDD procedural court orders.

Preserving electronic documents and data

Sending a preservation letter when a lawsuit is imminent or has been served is critical to minimizing loss of documents and data. You should send a preservation letter to not only the opposing party or counsel, but also your client (or if you're in-house counsel, to your company’s staff).

Tips for preservation letters:

• Determine if your situation meets the criteria for a temporary restraining order, and if so, request one.

• Be specific. For example, list names of pertinent individuals, document formats such as e-mails, e-mail attachments, and native file formats. Specify document categories such as letters, reports, ledgers, and invoices, and time periods. Being specific can enhance your ability to prove knowledge and intent of spoliation.

• Request preservation of electronic devices, storage media at the user and network levels, software, and manuals. List all known locations, such as the workplace, homes, personal/portable devices, remote offices, etc.

• Request cessation of any deletion of present and future active, archive, and back-up tapes/media, until an exact "mirror" data image of the storage is made. If a complete image is not possible, request a complete back-up or other copy of all the data. However, a mirror image will include deleted and residual data, while a data back-up will not.

• Request stoppage of any de-fragmentation to preserve deleted data. Request that all relevant data from drives, disks, cartridges, tapes, memory cards and other media be backed up immediately.

• Send a letter of preservation, even if intentional spoliation is unlikely. Equipment, storage media and data may be discarded or deleted routinely and innocently.

• Follow up the preservation letter with a motion and agreed or court-directed preservation order.