Preservation of electronically stored information (ESI)

In todayaEUR(TM)s litigation environment, evidence preservation responsibilities, particularly those concerning electronically stored information (ESI), seem to be constantly evolving. This process not only involves identifying key players, relevant time frames, and the metrics and locations of the information at issue, but also counseling sometimes unsuspecting clients about when preservation obligations attach and the consequences of not acting swiftly once a preservation trigger has been pulled.
Furthermore, U.S. District Court Judge Shira A. ScheindlinaEUR(TM)s January, 2010 opinion in Pension Committee v. Banc of America changed the law as it relates to preservation obligations. Much of that which historically was mere negligence may in some jurisdictions now be considered gross negligence. In these jurisdictions, a party may no longer have the need to prove prejudice if evidence is lost as a result of such gross negligence!
Given all the changes occurring in the legal landscape as they relate to ESI preservation and responsibilities, Wilson Elser is following up on our previous alert on the same subject with an updated white paper aEUR" aEURoeA Guide to Electronically Stored Information Preservation Responsibilities.aEUR? This white paper sets forth preservation concepts and obligations and contains extensive reference for companies that want more information.
Although this white paper is intended to help companies spot related issues and provide some guidance as to how they might move forward, it is no substitute for a thorough discussion of specific circumstances as they relate to a particular situation. Please contact us to discuss these ESI preservation efforts, including issuing legal holds and amended holds, monitoring legal hold compliance, and interviewing document custodians and IT personnel.
Wilson ElseraEUR(TM)s e-Discovery Practice Group is committed to keeping our clients abreast of pertinent developments in the law concerning ESI and other e-Discovery issues. For more information, please contact Thomas W. Tobin at thomas.tobin@wilsonelser.com or Daniel M. Braude at daniel.braude@wilsonelser.com . They are also the co-authors of this white paper.

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