Six Articles on Electronic - Craig Ball

Craig Ball © 2007
up procedures and retention schemes) and the identity of, and devices used by, key players.
Absent such disclosure, it’s very risky to agree that the defendant may, e.g., rotate server back
up tapes, replace systems or delete older e-mail. Don’t concede that the defendant can destroy
any information item in any form until the defendant demonstrates that the information lost is not
likely to be relevant to any issue in the case or lead to the discovery of admissible evidence.
Such representation need to be unambiguously confirmed in writing and supported by a
showing that a person with the requisite knowledge and skill actually knows the contents of the
media to be overwritten, discarded or destroyed. For voluminous or costly-to-restore data sets,
sampling contents is prudent if there is any question as to what information resides on media
slated for destruction.
Your agreement may also serve to blunt the defendant’s ability to seek cost sharing for the
expense of electronic production and open doors to broader or easier access. To gain your
client’s consent to a narrower preservation obligation, the defendant may be willing to undertake
and bear the cost of, e.g., producing digital evidence in your preferred format or computer
forensic analysis of key player’s office and home computers.
Your opponent isn’t the only one who needs to prepare for a meet and confer session. Though
it may be difficult early in the case, you must be able to put forward what you want and why
you’re entitled to it. You don’t get the e-mail just because it’s there. Be prepared to articulate
the relevance and the appropriate interval for the digital evidence you seek.
Finally, it’s essential to reduce all preservation and production agreements to writing. Where
possible, submit agreed orders to the court, remembering that judges are much more willing to
impose sanctions for violations of their orders than for breach of an agreement between
counsel.
Part II
Having decided what you need and advised the defendant to preserve it, it’s time to seek
production. In Part II, we look at the pros and cons of production formats and explore common
e-mail systems, concluding with tips for getting the most out of your e-discovery efforts and
budget.
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