1. The 12/1/06 rule changes make explicit the duties that already existed. Electronically stored information (ESI) has been discoverable for a long time. The courts have applied the prior rules of civil procedure and developed several duties concerning e-discovery:
a. duty to understand your client’s ESI system
b. duty to preserve ESI
c. duty to locate, disclose, and produce ESI
2. Duty to preserve ESI:
When does it arise? Usually before the client even consults an attorney. In a non-ESI context, Fourth Circuit has ruled that the duty to preserve evidence arises when a party reasonably should know that the evidence may be relevant to anticipated litigation.
Please see full publication below for more information.