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Legal Tech: Duty to Preserve ESI of Hybrid-Driven Collaborative Tools
As the trend in remote and hybrid work has continued to grow in popularity, applications permitting real-time collaboration between employees plays an important role for businesses. With heightened ease of use and convenience, however, comes a duty for businesses and organizations to employ best practices regarding their responsibilities in maintaining the electronically stored information (ESI) that these applications create. Litigants must also remain mindful of evolving types of ESI when demanding information from opposing parties and non-parties to support their claims and defenses in litigation.
The Duty to Preserve
The duty to preserve arises where: "(1) there is pending or likely litigation and knowledge of this fact by the alleged spoliating party, (2) the evidence is relevant to litigation, and (3) the opposing party would be prejudiced by the destruction or disposal of the evidence." Cockerline v. Menendez, 411 N.J. Super. 596, 620 (App. Div.), certif. denied, 201 N.J. 499 (2010). Keep in mind that a party can be sanctioned for failing to preserve ESI regardless of whether the failure to preserve was negligent or intentional. Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001); Jerista v. Murray, 185 N.J. 175, 201 (2005).
Rule 4:10-2(f) makes clear that a party has an obligation to preserve ESI, including metadata, although there is no obligation to preserve where doing so would present undue burden or cost. ESI can include, inter alia, voicemails; internet browser search history logs; videos and recordings of conference calls; communications via workplace collaboration tools such as Google Hangouts, Teams, and Slack; communications using ephemeral (i.e., self-deleting) messaging applications; and location data. An organization need not preserve every single piece of ESI that exists, but must preserve what is reasonable under the circumstances. See, Comments to R. 4:18-1 (Aug. 1, 2016). In the Complex Business Litigation Program (CBLP), Rule 4:104-5 also applies and requires "reasonable" steps to preserve ESI, allowing for sanctions if one fails to do so. What "reasonable" means and what constitutes an "undue burden" in the varied context of evolving ESI mediums may not always be clear. Practitioners must remain proactive in assisting clients in developing appropriate policies for retention of ESI to avoid future difficulties.
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