Electronic Discovery Tips

Here is some suggested language for a letter requesting that electronic evidence be preserved until an electronic discovery order can be entered:

Dear _______:

In connection with the lawsuit we have recently filed, it is absolutely critical that certain evidence be preserved. In particular, please do no delete or otherwise dispose of any of the following categories of information or data until an appropriate discovery and evidence retention order can be entered by the Court:
1. Emails and all attachments thereto relating in any way to the subject matter of this litigation;
2. Metadata (information related to e-mails such as date sent, date received, subject)
3. Tapes or other media containing disaster recovery backups of e-mail servers;
4. CD-ROMs containing archives of e-mail; and
5. Personal computers, home computers, laptops, handhelds, or other electronic storage devices.

We also request that you immediately instruct all employees to cease automatic destruction of records until the company can isolate and copy the relevant material.

In addition, please send an email and a letter to key custodians, including their assistants, directing them not to delete any e-mail or documents in their personal accounts or on the “shared drives.”

Thank you for your anticipated cooperation. If you do not intend to comply with any part of this request, please notify me immediately so that appropriate motions can be filed.

Very truly yours,

Taking Out of State Depositions

This article lists the steps you should take to schedule a deposition in a different state:

1. Will the witness volutarily appear for the deposition?
2. If the case is in Federal Court, a subpeona can be served within 100 miles (as the crow flies) of the courthouse or within 100 miles of the site of the deposition meaning it can be taken anywhere in the United States. See Fed Rule of Civ Proc 45(b)(2).
3. Find out if the individual you want to depose is in a state that has a court rule like MCR 2.305(E) that permits depositions to be taken of residents of Michigan when an action is pending in another state.
4. You may need letters rogatory or a commission from state court to provide to the state court where the witness is located.

For more information, please copy and paste the following address for an article published in the Utah Bar Journal: http://www.utahbar.org/sections/litigation/html/how_to_take_an_out-of-state_de.html. Another good source of information on the topic is located at the following address: http://www.abanet.org/yld/litigation/lit101pdf/Wilkins.pdf.