As state and the federal courts continue to weigh in on the infinite possibilities surrounding electronic discovery, the universe of electronically stored information (ESI) demands to be defined. A producing party’s duty to preserve relevant evidence is not the issue. The confusion comes from what types of ESI do these preservation obligations refer to? From a requesting party’s perspective, is there any doubt that relevant evidence pertaining to their case may well go beyond the boundaries of certain documents and e-mail communications? As you read through the recent preservation of evidence order below, you will see just how extensive the universe of ESI preservation can be.
United States District Court, N.D. California, Oakland Division.
In re FLASH MEMORY ANTITRUST LITIGATION.
No. C-07-00086-SBA. April 22, 2008.
Joseph Cotchett, Steven Williams, Cotchett, Pitre & McCarthy, Burlingame, CA, for the Indirect Purchaser Plaintiffs.
ORDER REGARDING PRESERVATION OF EVIDENCE: SAUNDRA B. ARMSTRONG, District Judge
*1 IT IS HEREBY ORDERED THAT:
All parties and their counsel are reminded of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data, and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees, or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action. “Documents, data, and tangible things” shall be interpreted broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voice mail, E-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, discs and cards, printouts, document image files, Web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, check statements, worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, charts, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such material. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition. Until the parties reach an agreement on a preservation plan or the Court orders otherwise, each party shall take reasonable steps to preserve all documents, data, and tangible things containing information potentially relevant to the subject mater of this litigation. In addition, counsel shall exercise all reasonable efforts to identify and notify parties and non-parties of their duties, including employees of corporate or institutional parties, to the extent required by the Federal Rules of Civil Procedure. *Slip Copy, 2008 WL 1831668 (N.D.Cal.)
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