Recent e-discovery decisions continue to address the “nuts and bolts” of how to prove your case using electronically stored information (ESI). The decisions discussed below address the up-front issue of ESI preservation, and whether ESI, under various circumstances, should have been preserved and whether its deletion is an appropriate basis to find that spoliation has occurred. As decisions make clear, simply because ESI was deleted does not necessarily justify a spoliation finding, and whether spoliation took place is case specific and may be a question for the jury as opposed to a decision made by a judge.
As practitioners are well aware, how to acquire relevant ESI, which may be “ephemeral” social media ESI, presents its own set of challenges. A party for a variety of reasons may not have “retained” such ESI and, thus, courts may direct a party to execute an authorization, which would then be provided to, for instance, a social network website, in order for the ESI to be turned over.
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