• Covered electronically stored information (ESI) is very broadly defined.
  • Potential ESI includes: Internet web accounts, voice-mail servers, thumb drives, metadata, cell phones with messaging, and personal digital cameras.
  • As soon as litigation is reasonably anticipated (not after it is filed):
    • Advise all relevant employees to preserve ESI;
    • Suspend automatic ESI destruction policies and programs.
  • Meet early with counsel and ESI storage experts to address preservation and disclosure issues.
  • Serious sanctions can be imposed for failing to protect ESI from routine destruction.
  • Be prepared to address discovery of ESI very early in the litigation, including:
    • Where and how ESI is stored; and
    • How it will be produced.
  • In general, ESI must be provided in a reasonably usable form or in the form in which it is ordinarily maintained.
  • In general, you will not be required to produce ESI that is not reasonably accessible because of undue burden or cost.
  • Manage the cost of producing ESI by developing a discovery strategy based on the new rules early in the process.