Even in the digital age, discovery obligations have not changed: preserve and produce all relevant, nonprivileged information. But, wait too long to preserve documents — including electronically stored information (ESI) — and the stakes are high: e.g.,dismissal of claims, judgment in favor of a prejudiced party, evidence suppression, spoliation adverse inference, deeming facts admitted, striking privilege claims or trial witnesses, fines and/or attorneys’ fees and costs.
With such costly sanctions, companies and their counsel in this jurisdiction must recognize that the federal standard regarding when document-preservation obligations are triggered often translates to “sooner than you think.” And they must know where some of the unlikely ESI caches may be lurking.
