President Theodore Roosevelt had his bully pulpit. This blog is mine.

Here I go again preaching that reasonable steps to preserve potentially relevant electronically stored information (ESI) must be taken as soon as litigation is likely. It is a truism that ESI not preserved cannot be produced.

While it’s reasonable to wait weeks or months to gather paper documents from filing cabinets and store rooms, steps to preserve ESI cannot wait. Delay translates into a high risk that producible documents and metadata stored on hard disks or other storage devices will be lost.

Prompt effort to preserve ESI is inexpensive. It is cheap insurance. However, if an effort to preserve is not taken, the consequences are horrifically expensive.

It’s now commonplace for courts to sanction parties and their attorneys for destruction of electronic documents. Some cases involve intentional misconduct such as wiping the content of a computer’s hard disk drive. Other cases involve unintended conduct, followed by lying to the court to cover up mistakes.  

However, most cases involve a simple failure at the start of litigation to preserve producible ESI. If there is any delay, ESI will be lost. At a minimum, the consequence will be costly re-dos and work-arounds to find duplicate data. In the worst case, ESI is irretrievably destroyed and spoliation sanctions imposed. Courts have almost universally held that ignorance of computers is no excuse.

What do you do? Notice that the preservation steps outlined below don’t require parties or their attorneys to access and search for ESI on storage devices. Accessing and searching are later steps in the ESI production process, and they are expensive steps.  

Basic steps to preserve ESI include:

• Put one person in charge who has both legal and technical savvy.

• Inventory and find all ESI storage devices that are likely to store information potentially relevant to the issue in the litigation.

• Secure electronic storage devices that are not in active use with a custodian. Securing inactive devices with a custodian is cheap.

• Forensically image storage devices that remain in active use and secure the forensic image with the custodian. Forensic imaging (without accessing) is inexpensive.

• If you decide that some storage devices with potentially relevant ESI are not to be secured or mirror imaged, have a good reason for not doing so.

• Document every decision you make and every step you take so that you have a record to show to a court if it becomes necessary to explain and justify that what you have done was reasonable under the circumstances.

Here it is again in a nut shell: Preserve promptly and inexpensively at the start of litigation. Incur the cost of access, search and production later. Avoid horrendous do-overs and spoliation sanctions.

C. Dean Little is an attorney and principal at Blank Law + Technology PS. Mr. Little brings more than 30 years of experience and skill as an advocate in complex commercial disputes. His practice emphasizes securities litigation, intellectual property and unfair competition litigation and government civil enforcement proceedings.