In today’s digital age, the proper preservation of electronically stored information (ESI) has become a critical task in the legal world, affecting lawyers and clients alike. But does your law practice have comprehensive procedures in place to ensure the due preservation of your client’s ESI?
If not, it might be time to take a hard look at how you’re handling this crucial responsibility. Obligations to preserve ESI typically arise once litigation is anticipated, and ignoring these responsibilities may entail severe consequences for both attorneys and their clients. Abiding by these obligations requires affirmative steps to prevent the destruction of this material.
According to a post on LexisNexis, the duty to preserve ESI is not merely passive but requires proactive intervention. This means that past simply instructing your client to preserve all relevant ESI, it’s also necessary to ensure this instruction is effectively carried out in practice. This may involve a host of factors such as the nature of the ESI, the litigation at hand, the client, and the laws applicable to ESI preservation in your jurisdiction.
Effectively addressing ESI preservation questions calls for at minimum, a basic knowledge of the client’s ESI landscape which includes understanding where, how, and by whom the ESI is stored. This awareness helps determine the reasonable steps needed to prevent the client’s ESI from being destroyed. Laws that govern ESI preservation vary across jurisdictions but they all stress the importance of the role attorneys play in guiding clients through ESI preservation.
As legal professionals, it’s incumbent upon us to keep abreast of changing norms and rules around ESI and continually assess whether we’re doing enough to preserve our client’s ESI. The costs of falling short can be high, including potential penalties, evidentiary issues, and even bar complaints, but the challenge also brings an opportunity for attorneys to enhance their value to clients by skillfully navigating this complex landscape.