I. INTRODUCTION
The Federal Rules of Civil Procedure were amended on December 1, 2006 and the Nebraska Rules of Discovery will soon also be amended to include specific references to discovery of electronic data. Banks should have a basic understanding of what may be involved in electronic discovery in the event of litigation involving the bank. The new federal rules and anticipated new Nebraska rules regarding discovery require all bank personnel to carry out specific tasks to save and protect Electronically Stored Information, “ESI.” Set forth below is a discussion of the responsibilities placed upon banks in relation to ESI.
II. ELECTRONICALLY STORED INFORMATION
Prior to and during litigation, a bank will be required to closely monitor and preserve its ESI. ESI is a distinct and separate category from “documents” and is looked upon as any and all information assembled and stored within a computer. ESI includes but is not limited to: E-mail, including attachments; word processing documents; spreadsheets; presentation documents; graphic; animation; images; audio, video and audio visual recordings; voicemail; text messages; and instant messages.
III. COMMENCEMENT OF TIME TO BEGIN PRESERVING ESI
A bank has a duty to preserve ESI long before a lawsuit is filed. The duty to preserve ESI commences when a bank has notice that evidence it is holding is relevant to litigation or when a bank should have known that the evidence may be relevant to future litigation. In Zubulake vs. UBS Warburg, LLC, 220 F.R.D. 212, S.D.N.Y. (2003), the injured party commenced a discrimination claim against the employer with the EEOC in August of 2001. Critical to the Court’s decision in determining the commencement of time ESI should have been retained was the employer’s staff believing that as early as April 2001 the claimant would file suit in the future. As a result of this evidence, the Court held that the duty to preserve ESI arose beginning in April of 2001 because legal action was reasonably anticipated by the employer at that time.
The trigger date to begin preserving ESI will be looked at by a Court at the time litigation was reasonably anticipated. If a bank makes a decision to pursue litigation against a customer, duty to begin preserving ESI arises at that same time. If an action is brought against a bank, the trigger date most likely began not when the bank received service of a summons, but when the bank received a demand from a potential claimant.
IV. MUST BANK PRESERVE EVERYTHING?
Only ESI which the bank knows or reasonably should have known is relevant to an action or reasonably likely to be requested during discovery, must be preserved. This includes evidence which may be useful to the opposing party. A bank is not required to preserve every document or every e-mail in its possession and control. Zubulake requires an additional responsibility of a party involved in litigation or a party reasonably anticipating litigation. The decision in the case requires a party to suspend its routine document retention or document destruction policies by placing a “litigation hold” on relevant documents and ESI.
Upon learning of litigation by or against a bank or the reasonable belief that a bank might be sued, the bank should advise key personnel of the litigation hold and then take affirmative steps to monitor compliance with the process. The instruction to hold ESI should be periodically reissued so that new employees are alerted and so that the hold remains fresh in the minds of others.
V. SUMMARY
Because of the newly adopted rules concerning ESI, bank staff must be aware of the requirements and protections necessary to meet the demands to preserve and protect ESI. The retention of ESI and the types of ESI that must be preserved will be dictated by the specific facts of each case.