Also known as: electronically stored information · electronically-stored information · e-discovery information · electronic evidence
Written by attorneys · grounded in primary & secondary sources — see below
Data created, stored, or transmitted in electronic form. Such data encompasses emails, documents, databases, and other digital materials that parties must identify, preserve, and produce when relevant to litigation.
Emma Erickson, counsel for Enigma Technologies, receives an email attachment containing internal strategy memos from opposing counsel at Evergreen Bank. The cover note indicates the materials were meant for the bank's own litigation team. Erickson immediately contacts the sender to alert them of the transmission and returns the files without reviewing their contents.
Elliot Edmonds sues Everest Holdings for gender discrimination and requests production of all internal emails discussing his performance reviews. Everest Holdings directs its IT department to suspend routine deletion of employee mailboxes and to image the relevant custodians' hard drives within days of receiving the complaint.
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Once litigation is reasonably anticipated, a party must take reasonable steps to identify and retain potentially relevant electronic data. Failure to do so can result in sanctions even if the loss occurs through ordinary business practices.
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A party need not produce the same electronically stored information in more than one form under Federal Rule of Civil Procedure 34(b)(2)(E)(iii). The requesting party may specify a preferred form, but duplication is not required.
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Model Rule 4.4(b) requires the receiving lawyer who knows or reasonably should know the material was sent by mistake to notify the sender promptly. The rule does not dictate whether the lawyer must return or destroy the information.
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Federal Rule of Evidence 1001(d) provides that an original of electronically stored information is any printout or other output readable by sight if it accurately reflects the information.
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…U.S.D.J. Opinion by Shira A. Scheindlin, U.S.D.J. This case presents the issue of the scope of a party's duty to preserve electronic evidence. Plaintiff Laura Zubulake ("Zubulake") was an equities saleswoman at the Wall Street investment firm UBS Warburg LLC ("UBS"). She alleges that she was fired because of her gender and…