_

American Bar Association

Forum on the Construction Industry

Electronic Documents—Control and Legal Fine-Tuning

Carla T. Ashley

Jones, Walker, Waechter, Poitevent, Carrère & Denègre L.L.P.

Baton Rouge, Louisiana

Michael J. Whitcomb

Hurtado, S.C.

Milwaukee, Wisconsin

Presented at the 2009 Fall Meeting

“The Two-Way Street of Construction Counseling:

Learning From the Ins & Outs”

October 15-16, 2009

Philadelphia, Pennsylvania

©2009 American Bar Association

Introduction

As construction industry clients come to rely more heavily on technology to meet their scheduling and communications needs, the means of generating electronically stored information (“ESI”) on a construction project have evolved to include a plethora of programs and products geared at project management and document control. The widespread use of email as a primary means of communicating, as well as the use of portable and handheld devices to facilitate faster transmission of electronic information, has simplified the task of documenting construction projects. But, as any construction entity that has been involved in litigation can confirm, that simplification has not come without a cost. When parties fail to invest in the implementation and enforcement of policies that limit the amount of ESI generated and preserved during a construction project, the consequences, and in particular, the cost of litigation, can be crushing.

Within any construction industry company’s record retention policy and practice is the necessary control and management of the exponential growth of ESI. This paper will outline strategies that will enhance companies’ abilities to function effectively and efficiently, not only during the course of a project, but perhaps more importantly in the event of litigation. Section one will focus on the types of ESI that construction industry clients are most likely to generate throughout the course of a construction project. Section two will outline strategies for managing not only the magnitude, but also the content of ESI generated in a project. Section three will give insight on the legal consequences associated with the handling of ESI, from the moment a client anticipates litigation to the resolution of the suit by way of settlement or trial.

I. What is ESI, and Where Does It Come From?

The increased use of digital technology on construction projects has resulted in a shift away from the use of file cabinets, archived boxes of documents, and rolls of construction plans, to a more sophisticated, digitized system of maintaining and exchanging information. From the use of computer software for everything from estimating and takeoff, to project scheduling, management, and closeout, the opportunity to create, convey, and store ESI during the course of a construction project is virtually boundless. Add to that the development of systems based on project object models, and the ubiquitous use of email in place of telephone calls and face-to-face conversations, and you have a recipe for a potentially overwhelming volume of digitally-stored information that must be timely identified, collected, and processed in the event of a lawsuit.[1]

Whether it is routed through a local, remote, or web-based server, email has become a major source of ESI on most construction projects. It is true that fewer paper documents may be generated when items of “traditional” written correspondence are conveyed via email. The fact remains, however, that much correspondence that traditionally has been communicated by telephone or in-person conversations, is now conveyed in writing, via email.[2] Email correspondence tends to be written less carefully than other forms of written correspondence, and may contain incorrect assumptions and legal conclusions, factual errors, personal opinions, or offensive remarks that can be embarrassing or harmful if they are disclosed. This trend may be particularly disturbing when it results in the documentation, and later discovery, of conversations that would otherwise be only a matter of memory.

Another source of ESI on construction projects is the output (files and data) generated by project delivery and management software. These programs include Primavera, Procore, Omega, Proliance, Timberline, and Prolog. With each of these programs, users have the option of overwriting files or creating new files each time the source file is modified. In cases where users choose to overwrite files, paper copies may be the only evidence of the precise way that particular file evolved during the course of the project.

ESI may also be generated using office suite software, the most common of which is Microsoft Office (Word, Excel, Powerpoint, Access, and Schedule Plus). As with project delivery and management software, users of these programs have the option to overwrite work or save documents as new files, thereby preserving prior versions of a document. A user’s ability to create new files by modifying old information is one way in which ESI multiplies, often needlessly. By controlling the types of documents that are stored or archived, a company can rid itself of ESI that is non-essential to the business, and even avoid exposure to unnecessary risk in the event of litigation.

The Legal Framework for Managing ESI

Under Federal Rule of Civil Procedure 37(e), “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as the result of the routine, good-faith operation of an electronic information system.” Practically speaking, taking a proactive approach to the management of electronically stored information is allowed under the Rules, so long as the party acts in good faith.

“Good faith” in the context of the operation of an electronic information system is not defined in the Rules. The comments to the 2006 amendment to Rule 37, however, offer some guidance: “Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation.”[3] Thus, when a party reasonably should know that ESI may be relevant to anticipated litigation, it must implement a “litigation hold” to comply with the good faith requirements of Rule 37(f).[4] As one court recently explained:

Sanctionable spoliation of evidence occurs only when three prerequisites are met. First, the altered or destroyed evidence must have been relevant to the litigation. Second, the party must have been under a duty to preserve the evidence at the time it was altered or destroyed. A party has a duty to preserve evidence during litigation and at any time “before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Finally, the spoliating party must have acted with the requisite level of intent, which varies depending on the sanction imposed. When dealing with adverse inference charges, the sanction is only appropriate if the spoliator’s “willful conduct resulted in [the evidence’s] loss or destruction.”[5]

II. Best Practices

Ideally, ESI management program will function such that relevant information will be made more easily accessible, and most irrelevant information will have been purged from the cache of data—all as a matter of routine—before a litigation hold is implemented.

A construction industry company faced with a lawsuit may be faced with the time-consuming and expensive task of searching for information across hard drives, servers, and all manner of removable media. Finding the data is the first step, and it assumes that the relevant files have been properly saved, and that they have not been destroyed—either accidentally or willfully—in violation of preservation obligations. The following steps serve as a primer for creating and implementing a defensible ESI management plan.

A. Identify a Person or Team of People to Create a Data Map

ESI may be maintained by a company on its own internal servers, backup tapes, or other data storage devices. Data also may be stored outside the company, either through processes like cloud computing, through application service providers, or on online archive storage facilities. Once a company identifies a person or team of people with the requisite expertise to identify (1) the places where ESI is stored, and (2) whether that arrangement sufficiently meets the needs of the organization, then the organization should create a data map that identifies the sources and location of all the ESI generated, conveyed, and stored by the company. Because this exercise can be highly technical, the expertise of an experienced ESI consultant may prove helpful during this process.

B. Identify Locations of ESI

To start, companies should identify the sources of electronic data utilized by the company, as well as the places where the data is stored. The following inquiries should be made:

Do employees have access using a remote access/application publishing product (such as Citrix Metaframe, GoToMyPC, pcAnywhere, Windows Terminal Services) that allows them to connect to applications available from central servers?
What, if any, are the policies or limitations regarding the use of peripheral data storage devices (including CDs, DVDs, tape drives, removable disk cartridges, flash (thumb) drives, floppy diskettes, and other devices listed below) to make secondary copies of documents or other data?
What types of electronic storage media and devices are available for use by potential custodians?

desktop or laptop computer(s): home and office
hard drives: network and external
backup tapes
word processing software
databases
email accounts, including personal accounts, to the extent that they are used for work, whether internet-based or otherwise (e.g., yahoo, hotmail, g-mail accounts, web mail)

o archived email

o active email

o current and former employees/users

§ instant messaging

§ document management systems (e.g. Worldox, Xerox Docushare, Interwoven, Hummingbird)

§ CD-ROMs and/or DVDs

§ floppy disks

§ USB drives (also called flash drives or thumb drives)

§ voice-activated dictation or other digital dictation devices/software

§ project/practice management applications

§ time and billing/accounting applications

§ projection, forecasting, and modeling applications

§ facsimiles (transmitted and received)

§ contact management applications

§ data mining, searching, and retrieval applications

§ paging devices

§ GPS navigation systems

§ MP3 players or other audio systems

§ cellular phones (including voicemail and text messages)

o Are cell phones provided or supported by the company?

o If so, what individuals or groups of employees are provided cell phones?

§ PDAs (including email, voicemail, and text messages)

o Are personal digital assistants provided or supported by the company?

o If so, what individuals or groups of employees are provided PDAs?

§ off-site storage location (applicable for both paper and electronic copies of potentially responsive documents and information)

o Hosting sites

o Third-party vendors providing back-up services

o Backup tapes and other tape drives or removable disk cartridges

o Types? (e.g., DLT, AIT, Mammoth, 4mm, 8mm)

§ home and office voicemail systems, integrated and non-integrated (answering machines)

§ servers, including those that may have been replaced (thus still active) during the relevant timeframe

§ internet and intranet pages

§ Enterprise Resource Planning (ERP) software (e.g., SAP, Oracle Fusion)

§ work stations available to multiple users

· Any other electronic storage devices or systems?

C. Implement and Enforce a Document Retention Policy

Barring any legal requirements, the legal standard for retention is “reasonableness.” The destruction of documents in the ordinary course of business as part of a reasonable and consistently executed document retention policy adopted in good faith is a valid justification for a company’s failure to produce these documents in later litigation or in a regulatory investigation. If a company has an ad hoc policy, or no policy at all, any document destruction it undertakes could be considered suspect. Although an ESI management plan should not be adopted for the purpose of destroying damaging documents, there is an indirect benefit of a policy adopted for other purposes—it will rid the company of potentially damaging ESI that is unnecessary to the continuation of the company’s business.

A retention plan should detail how data should be maintained, when it should be archived and in what format (such as back-up tapes) and how it should be destroyed. The policy should set forth where the data is to be stored (in-house or offsite), and who will be responsible for consistent and continuous enforcement of the policy. “Cloud computing” entails storage of active data by a third-party provider; the data can then be accessed remotely by an organization. It is important to remember that the Federal Rules of Civil Procedure and similar state statutes require corporations to modify retention procedures to safeguard data that may be relevant in a litigation context when instructed to do so by counsel; thus, the proper procedure for implementing a “litigation hold” should be expressly set forth in the retention plan.

The key to effective ESI management is advanced planning that is specific to the organization’s needs. Following the above steps will serve as a guide to creating a data management plan that will ultimately cut discovery costs and defend a construction industry company’s retention actions in court

Project Management Software

Project management software helps construction firms better manage their projects for on-budget, on-time completion. A core capability is document control, with which project managers can control change orders, RFI’s and submittals. Complete systems also integrate a calendar or construction project scheduling software capability. A project “dashboard” can provide a summary view, giving project managers insight into the status of each job, and helping them quickly react to delays or cost overruns. Other available features are on-premise systems or on-line project management systems that are deployed over the Web.

III. Discovery and Electronically Stored Information

The Litigation Hold

When a party reasonably believes litigation is likely to occur, or when it should know that evidence in its possession may be relevant to future litigation, that party must enact a “litigation hold” by suspending its record management program, including its document retention/destruction procedures.[6] This duty applies whether the party is a defendant or plaintiff. While it is an acceptable practice to routinely destroy documents and ESI in a records-management program, an organization, and its attorneys, may face severe penalties if it fails to cease destruction of the documents and ESI once litigation is on the horizon.[7] An organization typically accomplishes this hold by establishing an appropriate alternate data storage location, and then downloading each pertinent type of record from all available data sources.

The landmark case on the duty to preserve ESI is Zubulake v. USB Warburg, LLC.[8] In Zubulake, the plaintiff brought suit against UBS Warburg alleging gender discrimination and illegal retaliation. Dissatisfied with UBS’s initial production of ESI in response to her discovery requests, she claimed that key evidence, consisting of internal UBS email, existed only on archived back-up tape and other storage media. Zubulake moved to compel UBS to produce the email at its own expense. UBS responded that the cost of restoring its archived email would be about $175,000, not including the cost associated with an attorney review of the email prior to production.

The Zubulake IV court addressed a motion for sanctions in which the plaintiff alleged that during the court-ordered back-up tape restoration process, several of the back-up tapes had been lost, and a number of individual email messages had been deleted after UBS ordered its employees to preserve such materials. In discussing the duty to preserve the missing back-up tapes, the court explained:

A party or anticipated party must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter. In recognition of the fact that there are many ways to manage electronic data, litigants are free to choose how this task is accomplished. For example, a litigant could choose to retain all then-existing backup tapes for the relevant personnel (if such tapes store data by individual or the contents can be identified in good faith and through reasonable effort), and to catalog any later-created documents in a separate electronic file. That, along with a mirror-image of the computer system taken at the time the duty to preserve attaches (to preserve documents in the state they existed at that time), creates a complete set of relevant documents. Presumably there are [sic] a multitude of other ways to achieve the same result.

The scope of a party’s preservation obligation can be described as follows: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold.[9]

To ensure that an opposing party complies with its duty to preserve records and to identify specific records or location of records to be preserved, litigants should send a preservation letter to the opposing party as soon as litigation commences. While the organization and structure of an opposing party’s records may be unknown, the scope of the preservation letter may be narrowed by understanding the nature of the parties’ relationship and the dispute. In addition to putting the opposing party on notice of what data should be preserved, the preservation letter should also request a conference where the parties can agree on a procedure for production of ESI.

Spoliation

Besides identifying the scope of the available records and ESI to be preserved, the preservation letter may also help establish a spoliation claim in the event that an opposing party destroys ESI that was within the scope of documents and information described in the preservation letter. The doctrine of spoliation applies where a party 1) has destroyed evidence 2) that is relevant to 3) pending or reasonably foreseeable litigation.[10] While a party may, in good-faith in its normal practice, routinely destroy ESI and other records, a court may impose sanctions and remedies for the destruction of evidence if litigation is reasonably foreseeable.[11]

Even if a party cannot preserve the evidence because it is not in its control, the party still has an obligation to give the opposing party notice of the potential for evidence destruction.[12] If an organization exercises control or had the opportunity to exercise control after the need to preserve evidence existed, the organization could be liable for a spoliation claim if it failed to preserve the records.[13] For example, a general contractor may be liable for spoliation of evidence if it fails to inform its subcontractors that litigation with the owner is reasonably likely and a subcontractor, through its normal course of business, destroys ESI relevant to the claim. The subcontractor could be found liable as well, assuming that litigation was reasonably foreseeable.

The penalty for spoliation can be severe, and proving the claim is much easier if ESI, rather than paper records, is destroyed, because of the nature of the data. Depending on the jurisdiction, spoliation can be treated as either a discovery violation, or as an independent cause of action. If a court determines an organization failed to preserve or destroyed evidence and discoverable documents, including ESI, the court’s inherent powers and the rules of procedure allow considerable discretion in deciding whether the organization’s actions should be punished.[14] If spoliation occurs in a jurisdiction where it is seen as a discovery abuse, the penalty could be 1) dismissal of the offending party’s claim, 2) a default judgment against the offending party, 3) a directed verdict, 4) imposition of monetary sanctions, 5) a finding of criminal contempt, or 6) suppression of evidence. Spoliation can also be grounds for the court to allow the finder of fact to make an adverse inference, or implied admission that an organization’s position is weak.[15]

Developing a Discovery Plan

Unlike discovery of traditional paper-based records, ESI discovery can be much more burdensome, not only because of the volume of digital information created in a construction project, but also because of the costs of preserving, reviewing and indexing the records. Internal planning for ESI discovery should occur as soon as litigation threatens, especially if an organization has not created an electronic records management plan. Once suit has been filed, not only should litigants send a preservation letter to all opposing parties, but they also should consider seeking a protective order from a court that ensures preservation of evidence. An organization may also want to consider the following suggestions for making a good-faith effort to preserve potentially relevant evidence:

· Download information from websites and preserve it in a useable format.

· Seek out information about the other party’s computer and record management systems with interrogatories, including the location of ESI and the software and hardware necessary to view the ESI in a raw format.

· Determine who provided, designed, and maintains opposing parties’ information systems and depose these individuals to learn about the structure of the opposing party’s computer systems.

· Obtain ESI as it exists in the computer systems of the responding party to ensure you can observe the metadata.

· Create backup copies of ESI to preserve native format.

· Organize and manage ESI after it is obtained. There are several commercial products available that will help organize the data.

· If there is reason to believe that records are being withheld by an opposing party, consider retaining a forensic computer expert to assist.

Rule 26(f) Discovery Conference

Under the 2006 amendment to Fed. R. Civ. P. 26(f), a pretrial conference must now include discussion of issues relating to ESI. Specifically, Fed. R. Civ. P. 26(f) provides for the following topics of discussion during the conference:

· A plan for discovery

· Disclosure and preservation of ESI

· Sources of ESI from which the clients are and are not producing information.

· What ESI will be included in the search for relevant documents

· What ESI the clients have that will not be searched

· The form of production to opposing counsel, including the production of metadata

· Privilege issues, such as including a claw-back agreement in a court order

· The type of case and the amount at risk.

Both sides must confer, and counsels’ communications may be considered by a court in determining whether the parties acted in good faith if a discovery dispute arises later.[16] In jurisdictions without a conference requirement, a conference to plan for discovery can still be helpful to both sides.

The importance of cooperation among counsel in conducting a Rule 26(f) conferences was highlighted in the recent decision of William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co.[17] In this multi-million dollar construction litigation, a non-party to the suit agreed to produce electronic documents, but objected to the search terms both parties proposed. In finding that the “lawyers design[ed] keyword searches in the dark, by the seat of the pants,” the court issued a “wake-up call” to attorneys about the need to effectively design search terms used in e-discovery. The court went on to reference a series of recent decisions as guidance for searching ESI for relevant documents.[18] The court also endorsed the “Cooperation Proclamation” from the Sedona Conference® and noted that cooperation and transparency in all aspects of preservation and production of ESI is a requirement, not just an aspiration. Finally, the court stated that counsel must carefully craft appropriate keyword searches with input from pertinent custodians, concluding that, “[I]t is time that the Bar – even those lawyers who did not come of age in the computer era – understand this.”

More than Meets the Eye: Metadata, Attorney Work-Product, and Privilege

“Metadata” typically refers to draft language, editorial comments, and other deleted matter retained by computer programs, as well as information describing the history, tracking, or management of an electronic file.[19] Although metadata may not be readily recognizable when an electronic document is printed, it may be requested by an opposing party during discovery.[20] Metadata may show information such as (1) who accessed a particular item of ESI, (2) the dates and times the ESI was accessed or modified, and (3) the individuals to whom ESI was distributed.

Unless it is removed, metadata may reveal work-product or attorney-client privileged communications. For instance, multiple individuals may edit a contract between an owner and contractor before it is presented to third parties for further negotiations. Each variation of a contract can show the development and strategy of the contract preparation, especially if counsel annotated the document with electronic comments. Unless the document is “scrubbed” before it is provided to third parties, this information will be accessible. Because scrubbing metadata from documents during the course of discovery could be considered spoliation, it is a better practice to make scrubbing metadata a routine business practice.[21]

Managing E-Discovery Costs

The cost to process, host, review, and produce ESI can have a significant impact on the strategy a party employs in litigation, particularly where there the amount of ESI is substantial. The first step in managing the process effectively is to identify the framework within which the e-discovery process will take place. Where only a small amount of ESI is relevant to the case, there may be no need to employ a third-party vendor to assist with the processing, hosting, and production. However, where there is a significant amount of potentially relevant ESI, the prompt identification of an e-discovery service vendor that can perform the necessary administrative e-discovery functions for a reasonable price is imperative.

Because e-discovery vendors’ services vary wildly in terms of the features and services included in any given “package,” it is important to solicit bids from multiple vendors, and then carefully compare the component services and corresponding costs for each one. Whereas some vendors may charge by the gigabyte without regard to the types of data being collected, processed, and hosted, other vendors may distinguish between certain types of data and charge a premium for processing more challenging media, such as back-up tapes. Similarly, some vendors may provide software that is compatible with all of the data and output forms required for the project, and others may offer only limited software applications. Finally, vendors may offer multiple services for a flat rate and charge by the hour or gigabyte for additional services, such as keyword filtering, deduplication, and preparation of production load files. By delving into the specific services that are covered for a flat rate, as opposed to by-the-service arrangements, clients are better able to find an e-discovery vendor that can meet their litigation needs, without making the process a cost-prohibitive endeavor.[22]

Inadvertent Production

During the course of discovery, the digital information exchanged can be voluminous; it is quite possible, and even likely, that a document containing privileged information will be produced, even with extensive privilege review. Although Fed. R. Civ. P. 26(b)(5) contains a “claw-back” provision, or a mechanism for returning, sequestering, and destroying privileged ESI, it is prudent to incorporate a claw-back agreement via court order to mitigate the risk of inadvertent waiver.[23] The Rule 26 claw-back provision requires that if a party produces ESI it later claims is protected by the attorney-client or work-product privilege, the party must notify the receiving party and provide a basis for the claim before the privileged ESI will be returned.

Not Reasonably Accessible ESI

Certain forms of ESI may not be easily located and retrieved, such as databases produced from software and hardware that are no longer is used in the industry. Also, there are situations where a responding party may have to expend a substantial cost just to determine if the information available is responsive. Fed. R. Civ. P. 26(b)(2)(B) addresses these difficulties. The Advisory Committee stated:

The volume of—and the ability to search—much electronically stored information means that in many cases the responding party will be able to produce information from reasonably accessible sources that will fully satisfy the parties’ discovery needs. In many circumstances the requesting party should obtain and evaluate the information from such sources before insisting that the responding party search and produce information contained on sources that are not reasonably accessible. If the requesting party continues to seek discovery of information from sources identified as not reasonably accessible, the parties should discuss the burdens and costs of accessing and retrieving the information, the needs that may establish good cause for requiring all or part of the requested discovery even if the information sought is not reasonably accessible, and conditions on obtaining and producing the information that may be appropriate.[24]

Amended Fed. R. Civ. P. 26(b)(2)(B) creates a two-tier analysis of the ESI to determine whether it is discoverable. Tier I requires that a party must provide discovery of relevant, and reasonably accessible ESI, and it recognizes that “[e]lectronic storage systems often make it easier to locate and retrieve information,” and this should be “taken into account in determining reasonably the scope of the discovery.”[25]

Tier II ESI “can be accessed only with substantial burden and cost.” The burden is on the responding party to “identify and provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.”[26] Sources that may not be reasonably accessible include:

· ESI that has been deleted, but still physically exists on a hard drive and can be restored using forensic techniques;

· Backup tapes that are not used as active data stores;

· Data from obsolete systems;

· ESI that requires specific software and/or hardware to access and the license for such use has a substantial cost.

The advisory committee did not specify precisely what ESI is “not reasonable accessible.” There are guideposts in the jurisprudence, however, that define more clearly the parameters of what is reasonably accessible ESI. For example, the Zubulake series of decisions addressed the issue in terms of whether the ESI was kept in an accessible or inaccessible format.[27] The Zubulake court designated five categories of electronic data on a continuum from most to least accessible, and then used that model in determining whether or not the requested discovery was unduly burdensome or expensive.[28]

The most accessible forms of ESI are those which do not need to be restored or manipulated to be usable, such as active or online data, near-line data, and offline storage or archives. Online data includes data or material which is actively being created, received and processed, or stored on the hard drive of a computer. An example of near-line data is a CD-ROM, or other electronic storage system that houses removable media. The third category of what the Zubulake I court characterized as reasonably accessible ESI, offline storage or archives, is exemplified by removable optical disk or magnetic tape media that are used to make disaster copies of records where the likelihood of retrieval is minimal.[29]

In contrast, ESI that must be restored, reconstructed, or defragmented is considered to be the least accessible under Zubulake I. These types of ESI, which consist of backup tapes and erased, fragmented, or damaged data, are more costly to retrieve and review, and may be outside of the scope of ESI a party is obligated to produce under Rules 26 and 45.[30] In the case of backup tapes, the data is stored sequentially, meaning that in order to read any particular block of data, one must first read all of the preceding blocks of data. ESI that fits into the least accessible category on the Zubulake I continuum includes erased, fragmented, or damaged data. It is only after significant processing that this type of ESI can be retrieved and reviewed, meaning it is the most likely to be deemed “not reasonably accessible” in a discovery dispute.

Importantly, as the Rule 26 Advisory Committee’s Notes warn, “A party’s identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence.” The Notes also state that “the circumstances of each case” are relevant in the determination of whether a responding party is obligated to preserve unsearched sources of potentially resopnsive information that it believes are not reasonably accessible. This, the Committee concludes, is the reason why an early discussion of e-discovery issues is “often useful” in that determination. A prudent attorney, then, should give serious consideration advising clients to err on the side of caution when making a determination of what “inaccessible” ESI can be destroyed when the client is under a continuing duty to preserve evidence.

IV. Conclusion

Failing to control the types and volume of ESI generated during a project can greatly increase the cost of litigation, and in some situations, it may even dictate the outcome of a case. Where parties are proactive in anticipating and addressing the issues that commonly arise during litigation as it relates to the creation, use, storage, and/or destruction of ESI, the investment of time and money can pay off huge dividends in the event that litigation does ensue.