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What Could Happen If You Fail To Preserve And Collect ESI?

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As you search online, you would find more and more experts recommending you to go to the best possible lawyers and attorneys to fight your cases and for your rights. Choosing inexperienced counsel and unknown law firms is always prohibited because doing so has its potential dangers that could be extremely unpleasing.

You could always learn a lesson from others because this is an easy way of learning rather than going the hard way. A similar instance took place just last year when a plaintiff wasn’t able to preserve the information that was to be presented in the court.

What Happened?

A plaintiff went into the court to get help on his case but was caught off-guard when he wasn’t able to present and preserve the information as required by the court. The magistrate took immediate action in this scenario, and the plaintiff had to face the music.

The case was Procaps S.A. v. Patheon Inc., and the proceedings took place on February 28, 2014. The steps taken by the magistrate were somewhat intrusive but had to be followed by the plaintiff and his lawyer because they screwed up.

The court the plaintiff to go for an e-discovery vendor so the data sources of the plaintiff could be forensically analyzed thoroughly by a third party this time. In the order, the court included the names of the custodians whose information was to be examined and there was another set of instructions to be followed after that. These instructions were strictly given to the lawyer of the plaintiff.

Here are the instructions and orders of the court granted to the counsel of the plaintiff as a way to rectify the deficiencies in preserving the ESI (electronically stored information):

  • The lawyer had to visit the named custodians one by one and interview them properly.
  • The data sources that were to be analyzed were supposed to be handed over to the lawyer of the opposing party.
  • The opposing attorney will provide a list of search terms to the plaintiff’s lawyer – to which he has to agree as well – and these search terms will be recorded and run by the vendor.
  • The plaintiff’s lawyer also has to work with the vendor to provide him with all sources of data that is in relevance with the case. The data required includes all ESI.
  • The vendor, i.e., the third party was also instructed meeting and interviewing the IT head of the plaintiff and record every piece of information provided by the IT head.
  • All data provided in hard copy format had to be scanned.
  • Images had to be taken to the data too.
  • Deleted files had to be recovered by the vendor too.
  • The plaintiff had to pay for the work done by the supplier on the case.
  • Counsel and plaintiff were ordered to distribute the attorney’s fee in half parts. The awarded fee was $24,115.

With these instructions, we can see that the plaintiff was in trouble. Why did the court take such an action?

Why Were These Actions Taken?

In simple words, the court took these actions because the plaintiff and his lawyer were not able to collect the required ESI and preserve it as ordered by the tribunal. Further particulars are as under:

  • The attorney of the plaintiff had not performed his assigned duty of going to Colombia and meeting with the IT professionals of the plaintiff to collect, analyze and record information about ESI.
  • No consultant was hired to give legal mentoring on what ESI should get collected or how.
  • The lawyer had also utterly failed in instructing the client and thoroughly managing the search for the required ESI.

The result of not passing proper information about searching the ESI forced the plaintiff to perform a quick search of information then. Without a consultant or lawyer supervising these searches and having litigation hold on these searches, the searches were conducted by the workers and executives working at the plaintiff’s company.

What Should Have Been Done?

This situation was an e-discovery case where electronically stored information had to be searched, analyzed and presented to the court. This research can only be done correctly when the lawyer guides his client on every aspect of the searching. The client can’t search randomly in documents and files stored on the computer. There are certain items, search terms, data, etc. that need to be explored.

The list is managed by a consultant who takes care of the ESI retrieval and guides the plaintiff on what items which to search. The lawyer has to meet every person relevant to the case and ordered by the court.

The lawyer must have also informed his client about the potential dangers that they were open to if the information was not collected and preserved. When a party fails to maintain the required ESI the court intervenes and takes control of the searching process. It significantly and negatively affects the position of the plaintiff in the case too.

What Lesson Was Learned?

The most important thing learned here is that you should only trust in the most experienced and well-reputed law firms when dealing with your cases. It doesn’t matter how small or large the claim. If you are not able to present the critical information required by the court, you are going to face the consequences. So you want to have only the most professional, well-trained and experienced lawyers on your side. If so, Ehline Law Firm is the place for you.

Contact Ehline Law Firm

Ehline Law Firm is the place for every person involved in personal injury cases in California. So this is the firm with lawyers who have been serving the industry for decades and are known for their work throughout the state.

Having won cases of millions of dollars, the lawyers of Ehline Law have earned a unique respectable place among personal injury lawyers of California, especially Los Angeles. With lawyers available to help you 24/7 and free first consultation, Ehline Law is going to represent you in your case with the power and force needed.


Michael Ehline - PI Law Tutorials

Michael Ehline is a highly trained personal injury attorney in Los Angeles, CA. He writes educational articles to help injured consumers.

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