Wednesday, June 28, 2017

Electronically Stored Information

Discovery is an area that should be known well when preparing for Civil Procedure on the MBE.  A specific sub-topic within the larger topic of discovery deals with discovery of electronically stored data.  Nothing too complicated here, but certainly worth taking the time to understand the following:

The parties in a civil case are required to preserve electronically stored data.  A party can request of the other party the form in which the electronically stored data should be produced, and the responding party must use that particular form unless it objects. If the party does object, the court will then determine if the objection is valid.  It may be the case that the requesting party does not specify the specific form in which the electronically stored data should be produced; in that case the responding party may use any form in which the information is maintained or a form that is reasonably usable by the requesting party.

Issues may arise in which one party claims that another has destroyed electronically stored information.  A party must take reasonable steps to preserve electronically stored information.  Importantly, if the party satisfies that standard of reasonableness then no sanctions may result from the destruction of the information.  In addition, if unpreserved electronically stored information can be restored, then no other remedial measures (such as sanctions) will be imposed.

If, on the other hand, the data cannot be restored and the discovering party is prejudiced by the lack or restoration the court may order remedial measures but such measures can be no greater than necessary to cure the prejudice.

Note that if the disclosing party acted with intent to deprive the discovering party of the electronically stored information, the court may take additional remedial measures such as presuming the lost information was unfavorable to the disclosing party and/or instructing the jury that it may or may not presume that the information was unfavorable to the disclosing party.  In addition, the court can dismiss the action or enter a default judgment against the party who destroyed the electronically stored data.

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