The Importance of Electronic Records Hold Letters and Pre-Suit Mirror Imaging.

In December 2006, Rule 34(b) of the Federal Rules of Civil Procedure was modified to include provisions relating to electronically stored information (including electronic files such as word processing, spreadsheets, databases and email). Now almost three years later, there is a wealth of authority as to the importance and complexity of electronic discovery (also referred to as E-Discovery for those in "the know").

The new Rule 34(b)(ii) allows discovery of electronic evidence in two forms: (i) in a form that is reasonable searchable (i.e., OCR TIFFs or PDFs), or (ii) in a native electronic format.

With these new rules, it is more important than ever to issue an Electronic Records Hold Letter at the advent of suit. Under recent Florida case law, it may be prudent for such a hold letter to be issued upon a reasonable threat of suit (i.e., even before a lawsuit is filed against you or your client).

The litigation hold letter should go out to the in-house counsel or executive tasked with oversight of the litigation. However, both the litigation attorney and in-house counsel should ensure it gets to the right people that may have discoverable information (like records custodians). Morover, it should be explained in English the purpose of such hold and the proper scope of the hold.

Drafting of an e-discovery hold letter represents an art unto itself, but can be extremely valuable should an accusation of spoliation be made by counsel later in the suit. While costly, the imaging of implicated drives by an outside forensics expert may also be a prudent step to avoid inadvertent deletion of potentially discoverable information.