The Importance of Preservation of ESI and Metadata
Historically, evidence to be presented at trial consisted of physical documents and other tangible things, i.e., a weapon in a murder trial. Proper preservation of physical evidence is critical. The failure to adequately preserve evidence is referred to as “spoliation.” If evidence is not properly preserved, an adverse party may request that the presiding court impose certain sanctions on the party who has failed to preserve the evidence. Nevada Revised Statute 47.250(3) provides that if a party willfully suppresses evidence, the court may impose the rebuttable presumption that the evidence would have been adverse to the party that failed to preserve (or intentionally destroyed) the evidence. If evidence is lost or destroyed through carelessness or negligence, a court may read an adverse inference instruction to the jury at trial. Such an instruction allows the jury to infer that the lost evidence would have been adverse to the party who failed to preserve it, but does not impose a presumption that it would be (as is the case with willful or intentional spoliation of evidence).
As technology progressed through the last century to the present, courts were faced with new issues pertaining to novel types of evidence, and the preservation of that evidence. Most notably, the dawn of the digital age required courts to consider the issue of electronically stored information (“ESI”). ESI can encompass anything from an email, documents and other information digitally stored in various formats (.pdf, .txt, etc.), digital photos, and beyond. Preservation of ESI is not always as straightforward as storing a hard drive or copying digital files to an external drive. ESI typically contains metadata. That is, data about data. Metadata in a file will generally contain information identifying the date on which the digital file was created or modified, where, and by whom. This metadata can be unintentionally altered if a file is moved, copied, or unintentionally modified. Such alteration of metadata could expose a litigant to accusations of spoliation of evidence, much in the same way as shredding documents (willful spoliation) or losing documents (negligent spoliation).
Even before litigation is anticipated, it is prudent to ensure that you are taking the necessary steps to properly preserve ESI, including metadata, to avoid an accusation of spoliation of evidence or an adverse instruction to the jury at trial should litigation arise. If you are unsure whether you or your company are adequately preserving ESI, or would like to review or develop an ESI preservation protocol, the attorneys at Lemons, Grundy & Eisenberg may be able to help.