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Computers are backed up to multiple locations.

In ESI discovery, don't say "all."
By Leonard Bucklin

Electronically stored information (ESI) seems to multiply with a life of its own.  That's the problem.  One solution is to avoid using the word "all."

Responding to requests for discovery: the greatest risk of unintentional mis-certification of what you produced comes from saying the word "all."

Requesting discovery: using the word "all" generates cost-driven objections, and an expensive responsive discovery demand from your opponent. Plus you do not want tons of "all."

TIP. Use the short checklist forms that are included in the full article. These short checklists help you eliminate using the word "all," and make your life easier.
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Everyone using a computer tends to make backups of what they create on their own computer. Plus, the computer itself and many programs automatically makes backups (e.g., by default, Word automatically keeps copies of all prior versions of the same document). Then the business, or even individuals, make backups to an off site location or to different storage devices on site, of all the stuff on all the computers in the office or home.

Today’s ESI storage has many copies floating around in the electronic soup of computers, laptops, thumb drives, cloud storage on the internet, and internal and external backup devices, all with changes in content, metadata, or file names and paths. Except in cases of one individual suing another individual over a personal injury, it is usually impossible or economically impracticable to drill down deep or wide enough to represent that all ESI storage has been identified and searched in a method that has in fact resulted in retrieval and production of all relevant documents and data.

You simply cannot find "all" — except where the total electronic storage is very limited. So do not certify you have produced "all" ESI containing a subject, or within date limitations, etc. You probably have not produced "all" the ESI on the subject, or existing within date limitations, et cetera.  Counsel are being sanctioned for certifying he/she has produced "all," but after that certification the client or an adverse expert has found additional relevant ESI. Don’t incur the wrath of the court.

On the other hand, demanding that opponent produce "all" is not usually a smart way to keep your own client's discovery expense down  . . .Read full article

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This is a PowerLitigation™ article of Leonard Bucklin. This article was adapted for LawyerTrialForms™ from his multi- volume text of discovery, litigation, and trial advice and tactics, titled Building Trial Notebooks. Bucklin is a Fellow of the International Academy of Trial Lawyers, limited to 500 top trial lawyers in the U.S, and has written over 18 texts and journal articles.

The author, editor, and publisher do not render legal or other professional services. Purchasers should themselves research original sources of authority and local law. If legal advice or other expert assistance is required, seek the service of a competent professional. 

Read Full Warnings,  Disclaimers, and Legal Notices.
Copyright, Leonard H. Bucklin, 2006 to 2010