- 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.
