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Gathering digital data: understanding the defendant's computer system and sending clear instructions for preservation can help you get the electronic evidence you need.

Article Excerpt
'As individuals and corporations increasingly do business electronically--using computers to create and store documents, make deals, and exchange e-mails--the universe of discoverable material has expanded exponentially," stated the U.S. District Court for the Southern District of New York in one of a series of important decisions regarding electronic evidence in Zubulake v. UBS Warburg LLC. (1) Today's breadth of discoverable material, even in cases of modest complexity, makes it more difficult for plaintiff counsel first to ensure that defendants preserve evidence and then to review voluminous discovery responses.

To conduct discovery effectively in the age of digital evidence, you must understand the law applicable to preservation obligations, the defendant's computer and storage system, and what to include in initial communications with the defense requesting preservation of electronic documents.

The discovery rules that apply to paper documents apply equally to electronic evidence. It is well accepted that parties have preservation obligations:

* Independent of a court order, "a litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action." (2)

* "While a litigant is under no duty to keep or retain every document in its possession once a complaint is filed, it is under a duly to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request." (3)

* "[A] party is on notice [of a duty to preserve relevant evidence] when it receives a complaint and/or a discovery request." (4) Further, "given notice and understanding of the obligations to preserve all discoverable hard copy and electronic data, one would expect that [the defendant's] next step would have been to implement a comprehensive written document preservation plan with specific criteria for finding and securing ... relevant evidence for the litigation." (5)

The laws and rules prohibiting the destruction of discoverable material apply to electronic data. (6) Indeed, the obligation to preserve electronic documents is greater:

[I]n the world of electronic data, the preservation obligation is not limited simply to avoiding affirmative acts of destruction. Since computer systems generally have automatic deletion features that periodically purge electronic documents such as email, it is necessary for a party facing litigation to take active steps to halt that process. (7)

You must convey these obligations early to defense counsel to ensure that electronic evidence is preserved properly and to make known your own command of information technology and the law of electronic discovery.

When electronic evidence will be an integral part of the litigation, you should gather information about the defendant's computer and storage systems as soon as possible. Seek this information at the initial Rule 26(f) "meet and confer" session, where you and your opponent will develop a discovery plan. This knowledge will allow you to more fully articulate your discovery needs, make intelligent production requests, and help fashion a discovery schedule. It may also be the basis for a request to take more depositions than the 10 allowed by Rule 30.

Argue that defense counsel should provide this information informally; this will give the court an opportunity to streamline the litigation and avoid wasting resources on needless discovery disputes, which can be costly for the defendant. If informal production is not possible for whatever reason, consider deposing the defendant's employee most knowledgeable about its...