Electronically stored information (ESI) collection not only dominates the discovery phase of every e-discovery case, but it also is a key litigation strategy. The strategic element can be especially painful when you are on the wrong side of a case involving asymmetrical obligations.
Asymmetrical obligations arise when one party has a disproportionate share of ESI burden. An example of this situation would be an aircraft manufacturer in a case involving an airplane crash, consumer-based class actions, securities litigation and usually in any type of employment case.
2. Take control of the process from the beginning. It’s vital to have ESI obligations defined at the beginning of the case. Complete the preservation process and then focus on collection. At the beginning of the case, only agree to collect information from non-redundant sources and key people. Tell your adversary exactly what you are going to do and dare them to go to the court to complain about it.
This point is counter-intuitive to many lawyers, especially defense counsel. Many times they want to avoid discussing ESI, hoping that the plaintiffs won’t bring it up. Sometimes this works, but it’s like playing Russian roulette. Even if your adversary does not initially ask for ESI, they often will in the middle of discovery. By the time the ESI is requested, it may have already been deleted and, in that case, you are facing an expensive spoliation fight. The solution is to develop your own plan for what you agree to collect. Be reasonable and not too narrow because you do not want the judge to think you are trying to avoid your ESI obligations.