If you’re facing litigation, it’s inevitable that you’ll encounter requests for production (RFP) or admissions along the way. While it’s possible to successfully raise privilege, scope, proportionality and other grounds when objecting to requests for production or admission, you need to have your electronically-stored information (ESI) prepared for production. This is because all organizations have a duty to preserve evidence in response to ongoing or foreseeable litigation. Failing to do this can raise serious sanctions issues for your company that could compromise your ability to litigate successfully. Here’s what you can do to properly prepare in advance.
What Could Happen If You’re Not Prepared
Motions for production and motions for admission are similar in that they’re requests for evidence, but they each go about this slightly differently. Requests for production are governed by the Federal Rules of Civil Procedure (FRCP) Rule 34, and allow parties to request ESI so long as the request describes with reasonable particularity the items to be inspected; specifies a reasonable time, place and manner for delivering the ESI; and confirms how the delivered ESI should be formatted. Alternatively, requests for admission made under FRCP Rule 36 require parties to verify or deny a statement of fact. In answering, parties are under a duty to verify and support any allegations made under these motions, which could include producing corroborating ESI evidence.
Regardless of your strategy, you must respond in a timely manner to these requests. In most cases, this is typically no later than 30 days from the date you were served with either type of request. Failing to do so could give your adversary grounds to file motions to compel a discovery response. This motion is available under FRCP Rule 37, and can give your adversary the opportunity to compel you to turn over specific evidence. Even if a court were to grant this motion only in part, you could be liable for reasonable attorney’s fees, or—in more extreme circumstances—receive contempt of court charges or face dismissal. You’ll also need to be mindful of FRCP Rule 37(e), which gives a court discretion to impose further sanctions if (i) your organization failed to take reasonable steps to preserve evidence, (ii) it could not produce the evidence in a different format, and (iii) the party requesting the evidence was prejudiced as a result.
How You Can Ensure Your Web Evidence Is Ready For Production
You need to act quickly to preserve evidence once you’re notified about foreseeable litigation. Issuing legal holds, conducting interviews with custodians, and collecting affidavits from key personnel can help show judges that you’ve taken reasonable steps to preserve relevant evidence in anticipation of litigation. Any data you collect from potential custodians in the process can also help you target the right social media accounts and websites to conduct to collection and preservation. You’ll also need to document the ESI chain of custody and preserve ESI metadata. Chain of custody tracks who owned and controlled certain ESI, while hidden metadata embedded within ESI can provide invaluable information about a document’s creation, authors, and edits. If your ESI metadata is altered or your chain of custody records are compromised, courts will assume the evidence has been tampered with and can either exclude your evidence or issue sanctions.
One of the greatests concerns for collecting and preserving online evidence is producing it in accessible formats for discovery. For web-based content like social media, websites, and videos, the best, most non-intrusive way to do this is to use authenticated screenshots, which the FRE now considers self-authenticating. Authenticated screenshots (those designed for legal use) employ an algorithmic process called hash-value matching to confirm that they’re verified copies of the pages they depict. On top of this, solutions like Page Vault automatically maintain these authenticated screenshots in off-site encrypted cloud servers. This means that whenever you’re served with a request for production or admission, all you’d need to do is send your screenshots to opposing counsel.
And you’re all set—until you have to deal with the next request.
This post was authored by Eric Pesale, a legal contributor who writes regularly about legal topics for law firms, publications, and companies as the founder of Write For Law. He is a graduate of New York Law School and the University of North Carolina at Chapel Hill, and has been published in the New York Law Journal and Above the Law. Eric can be reached at firstname.lastname@example.org or on Twitter at @writeforlaw.
About Page Vault
Page Vault helps legal professionals to capture and preserve web content such as webpages, websites, social media, videos, and images. Users can have confidence in knowing that Page Vault’s collection experts accurately preserve all necessary content and supporting data within the requested output format. Whether using their in-house software or vendor services, Page Vault can accommodate projects of any volume or complexity.