A popular advertisement for cellular services asks consumers: “Can you hear me now?” After years of static on the line about how parties in federal courts should handle the preservation and production of so-called “outlier” electronically stored information — such as that found on cell phones and PDAs, voice mail systems, instant messaging systems, chat rooms, and websites — the message is starting to come through.[FOOTNOTE 1] While these data sources may have been neglected or even completely overlooked in years past, recent events in courtrooms and in the news emphasize that these sources should not be ignored. One need look no further than headlines about voice mail and text messages apparently sent by a celebrity golfer to his alleged mistress to realize the potential significance of outlier ESI data.
That scandal reminds us of the importance of managing text messages, instant messages, voice mail and other outlier ESI before they become evidence in litigation. In fact, under certain circumstances, failure to preserve and produce certain outlier ESI could constitute spoliation and result in sanctions such as an adverse inference.[FOOTNOTE 2] Consequently, counsel should actively consider the legal and strategic benefits of incorporating outlier ESI into their litigation response plans (via inclusion in litigation hold notices and preservation efforts, discussion at meet and confer sessions with opposing counsel, and incorporation into discovery plans presented to the court).[FOOTNOTE 3] Whether it is appropriate for outlier ESI data to be preserved and produced in any given litigation is highly fact specific.