Digital Evidence: Preserving ESI

Brown v Tellermate Holdings Ltd., 2014

This employment discrimination case addressed the preservation of ESI (Electronically Stored Information) in cloud technology, when the defendants failed to preserve and disclose information from Salesforce.com (approximately 50,000 pages) that plaintiffs claimed were relevant to Discovery and their unfair dismissal.

Motion to Compel Production

Focusing on the defendant’s failure to produce and preserve the relevant ESI, the plaintiffs stated that they “failed to uncover even the most basic information about [a salesforce database],” and as a result hampered the plaintiff’s ability to “pursue discovery in a timely and cost-efficient manner.”

In an evasive response, the defendants stated that they did not preserve the salesforce information (showing the productivity of the plaintiffs) in hard copy format, and that this request should be made to Salesforce.com. The Court fully rejected this, stating; “As any competent practitioner would know, the first and third reasons do not justify a party’s refusal to provide responsive information over which it has control . . . the second reason was simply false.”

Defendants had also labelled the vast majority of discoverable documents as for “Attorney’s Eyes Only”, a decision which faced harsh criticism from the court, stating; “There may have been a time in the courts of this country when building stone walls in response to discovery requests [. . . ]was the norm. Those days have passed.”

Wherein lies the need to Preserve?

The court imposed an issue preclusion sanction on the defendant for failing to preserve the relevant information found on Salesforce.com.

Though the defendant’s counsel had issued a “general directive” for relevant information to be preserved for litigation purposes, the adequate actions were never taken to do so. In a strict step to highlight the need for preservation, the court ordered the defendant’s to the allow the use of documents marked solely for attorneys attention without restriction and granted sanctions by precluding the defendants from relying on any evidence that they terminated the plaintiff for just cause.

Landmark Case for Spoliation

Brown is an important precedent for attorneys in highlighting the correct way in which to manage the eDiscovery process with digital evidence, and imposes general standards of record management and technical competence in litigation. From identifying the relevant ESI, conducting a thorough investigation, archiving litigation-ready formats of content and communicating this with full disclosure to opposing counsels and the judiciary, Brown is a landmark case showing the potential jeopardy of a case in the failure to preserve the appropriate ESI.

 

The Role of WebPreserver

WebPreserver is an innovative eDiscovery tool, essential for the effective and easy creation of evidence from ESI and preservation of digital content for litigation purposes; an essential cost and time effective tool for legal professionals, litigation support and law enforcement officials.

With the easy installation of a Plug-in and single-click capture technology, WebPreserver software creates snapshots of evidence from any content place in the internet and stores them in PDF and WARC formats for use in litigation. Digital content is authenticated in line with Federal Rules of Evidence, the E-Sign Act and other standards of compliance by way of a digital e-signature and automated time-stamp.

Not only is strong, reliable evidence created form online content, WebPreserver software also provides secure resources for the archiving, preservation and sharing of this content. Once a Snapshot is created, it can be downloaded or stored on our online platform and shared with clients and colleagues in personal folders, with the additional features of keyword tagging.

Ensure that when engaging in litigation you maintain a high standard of records management and technical compliance; WebPreserver is a simple but effective means of doing this. Avoid sanctions and additional administrative and discovery costs with the proper utilisation of this leading eDiscovery software.

 

The information and materials on this blog are provided for general and informative purposes only and are not intended to be construed as legal advice. Content on this blog is not intended to substitute the advice of a licensed attorney, as laws are subject to change and vary with time, from jurisdiction to jurisdiction. Content on this blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date.

SOPIPA - Student Data Legislation In-court Testimony v. Online Evidence

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