Counsel's ESI Duties
Counsel's duties, pursuant to the Model Act, are vastly different from those imposed in our previous "paper" world. The Model Act is a departure from the usual statutes created by a legislature. The Act was created not by a legislative body but as the result of a Conference and Report at the behest of the Federal Seventh Circuit. The drafters of the Electronic Act, in large measure, were neither attorneys nor judges. While the drafting panel was composed of some jurists and attorneys, it was primarily populated by large corporate users of ESI. Accordingly, this Act has created new and novel duties as to counsel. A few of the major new requirements are:
- A mandate that at a very early stage in almost every case, counsel issue the following:
- An ESI Hold Letter to his/her client. The dissemination of a Hold Letter to all known database holders on behalf of the client.
- An ESI Hold Letter to the opposing party and to all affiliated ESI database holders.
It was the unanimous opinion of a blue ribbon panel of 15 federal and state jurists at a recent ESI conference conducted at Georgetown University that it is malpractice, per se, not to issue the Hold Letters set forth supra in almost every case.
Counsel is also required to supervise his or her client's production of ESI. Failure to supervise in the manner set forth below was also categorized by the panel as malpractice per se. Counsel is required by the Act to obtain a complete knowledge of his/her client's data universe. Counsel is required to meet with all key workers within the data universe repeatedly in order to see that ESI Holds remain continuously in effect for so long as appropriate during a litigation process.
Counsel is required to certify under the Act, to the Court, compliance with these and various other duties enumerated by the Model Act. The duties owed the Court are fiduciary in nature. Failure to comply is not a viable option.
Loss of evidence due to spoliation is regarded as either a negligent or intentional act resulting in the loss to the Court of its evidence. Accordingly, counsel is personally responsible for supervising the client's presentation and production.