Need for Proactive ESI Preservation Plan

Last month, I was at a site inspection involving a motor vehicle accident in the middle of nowhere Wyoming.  While standing in the cold Wyoming wind admiring the breathtaking views our state has to offer, the hum of a drone flying overfilled the air.  The drone was operated by my expert who was flying it up and down the road taking 4K video and pictures.  Later, based on the GPS data and these images, my expert would be able to render a 3-D rendering of the road as part of our accident reconstruction.

Watching the drone zig-zag up and down the road for hours, my mind could not help but wander to thoughts about how technology – as we all know – continues to advance at a rapid pace enveloping all aspects of our life whether that be in a city, home, or on the side of a windswept Wyoming highway.  The construction industry is no different.  Without a doubt, technology will continue to advance and will continue to change the industry.  While some changes will be subtle, others will fundamentally change how you operate.  Still, others may fundamentally change your exposure to liability.

For example, I recently read an article regarding some technology advancements in the construction industry.  One of the technologies mentioned in this article was wearables.  See How Technology is Changing the Construction Industry, January 10, 2017; http://constructionexec.com/article/how-technology-is-changing-the-construction-industry.  In this article, the author writes:

The construction industry has tremendous potential for wearable devices, such as smart glasses and hardhats that can provide visualization, augmented and mixed reality.  These visualization tools can provide improvements in accuracy, efficiency, and safety.  Other wearables, such as technology-enhanced safety vests, smartwatches, and health trackers, are being utilized to monitor workers motions and movements to enhance safety, increase productivity and reduce risk.

Id.  Maybe it’s the pessimistic defense lawyer in me, but when I read the above statement, the first thought that comes to mind is what liability wearable devices may create.  In this article, we would like to discuss your obligation regarding the preservation and production of the electronic information gathered and stored by advancing technology and your obligations for the preservation of this information.

If you ever find yourself in litigation in Wyoming, the rules of civil procedure will govern the discovery process.  As part of the discovery process, you have a duty to preserve all relevant information as soon as you know about a lawsuit filed against you or even when you can reasonably anticipate litigation will occur.  The preservation of relevant information extends to electronically stored information, which is also known as ESI.  All manner of information is now recorded electronically and must be preserved in the same manner as written documents.  This includes emails, text messages, direct messages on any electronic communication platform, electronic diaries or daily reports, as well as video or audio recordings created by wearable or drone devise.  The amount of information can be significant.   

With the advancement of technology in the construction industry, the amount of ESI will continue to grow, and during litigation, the amount of ESI information is truly astounding.  Once you have a duty to preserve documents including, but not limited to ESI, you must take the necessary steps to put a hold on or prevent the destruction of all documents pursuant to a document retention policy.  This includes preventing the destruction of ESI. 

“Although litigants have a duty to preserve relevant ESI, organizations do not need to search for and preserve every single piece of ESI that might conceivably be relevant to a lawsuit or investigation.  Rather, counsel must make a reasonable effort to preserve potentially relevant information. . . .”  E-Discovery in the US: Overview, Practical Law Practice Note Overview 1-503-3009.  Nonetheless, “[c]ompliance with the duty to preserve and produce ESI (and other information) is a continuing process that involves several steps, including:” 1) identifying ESI and hard copy documents that are within the scope of discovery; 2) issuing a written litigation hold; 3) locating ESI; 4) preserving ESI; 5) collecting ESI; 6) processing ESI; 7) reviewing ESI; and 8) producing ESI.  Id. 

If these steps are not following during litigation, you face severe sanctions including, but not limited to, dismissal of your claims, adverse inferences, or even judgment against you.  Thus, a well-developed and executed preservation plan is needed and essential to any litigation.  This is and will continue to be true with the increased use of technology in the construction industry.  In order to assure you comply with any requirement to preserve relevant ESI, you should take the time to proactively develop a preservation plan for ESI information now.

In order to proactively develop a preservation plan, you should consult with two individuals: any IT personnel you have whether in-house or not; and your attorney.  As a collaborative team, you and these two individuals can create an ESI preservation plan that protects you and streamlines litigation.