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Legal Tech: Duty to Preserve ESI of Hybrid-Driven Collaborative Tools

By Kimbrilee M. Weber and Julien M. Baumrin
October 01, 2022

As the trend in remote and hybrid work has continued to grow in popularity, applications permitting real-time collaboration between employees plays an important role for businesses. With heightened ease of use and convenience, however, comes a duty for businesses and organizations to employ best practices regarding their responsibilities in maintaining the electronically stored information (ESI) that these applications create. Litigants must also remain mindful of evolving types of ESI when demanding information from opposing parties and non-parties to support their claims and defenses in litigation.

The Duty to Preserve

The duty to preserve arises where: "(1) there is pending or likely litigation and knowledge of this fact by the alleged spoliating party, (2) the evidence is relevant to litigation, and (3) the opposing party would be prejudiced by the destruction or disposal of the evidence." Cockerline v. Menendez, 411 N.J. Super. 596, 620 (App. Div.), certif. denied, 201 N.J. 499 (2010). Keep in mind that a party can be sanctioned for failing to preserve ESI regardless of whether the failure to preserve was negligent or intentional. Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001); Jerista v. Murray, 185 N.J. 175, 201 (2005).

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