Sample Definition for Request for Production (RCP 34)

Document means any writing, drawing, graphic material or data compilations, including, without limiting the generality of the foregoing, agreements, contracts, notes, work papers, databases, memoranda, [insert additional descriptive phrases as preferred], whether stored in tangible, electronic, mechanical or electric form or representation of any kind (including (i) materials on or in computer tapes, disks and memory and (ii) backup copies and "deleted" files on a computer or computer storage device or media) whether located on-site or off-site. All drafts, copies or preliminary material which are different in any way from the executed or final document shall be considered to be additional documents as that term is used herein.

Sample Request to Inspect (RCP 34)

Plaintiff requests that defendant permit plaintiff to enter defendant's premises at [address] and to inspect, test, sample and copy the data, records and files (including e-mail sent or received by defendant and files located on remote computer systems that may be accessed by defendant's computer system(s)) on the hard drive(s), other storage devices, backup tapes and in memory of the following computer system(s) and any other computer systems located on said premises:

[List computer systems]

Sample Interrogatories

Describe the computer system(s) including, but not limited to, network servers, workstations, laptops and hand-held computers (including, but not limited to, personal organizers) used by [plaintiff/defendant] currently and at any time within the past [5] years, including, but not limited to, for each such system, the brand and model, the amount of memory and capacity of the hard disk(s), the make, model and capacity of any removable media or near-line storage systems, the name and version of the operating system, the name and version of network software, if any, the brand and model of all peripheral devices including tape drives, external disk drives, other storage devices and modems; the brand and version of major software in use on the system(s) during such period (including, but not limited to, electronic mail programs, workgroup collaboration programs or groupware, and scheduling software), and the name of all on-line (electronic) services that have been accessed with the system(s) during such period.

Provide the name, employer, title, business and home addresses and telephone numbers for each person with operational or maintenance responsibility for the computer system(s) described above [during time period], including, but not limited to, the person(s) who maintain the hardware described in (1) above, the person(s) responsible for installing software on the system(s), the person(s) responsible for the day-to-day operation of the system(s), the person(s) responsible for making back-ups or archiving files and data on the system(s), and the person(s) who can provide any passwords that may be necessary to access the appropriate computer system(s) or files.

Describe policies and procedures followed by [plaintiff/defendant] for backing-up information on the computer system(s) described in (1) above, including, but not limited to, the frequency of backups, the type of backups created (full, differential or incremental), the backup software used during [period], if copies of such software are available for accessing this information, the number of sets of tapes or other media and the rotation or usage practice of such media, whether any indexes or listings of the backups exist (kept manually or automatically), the current location of all such backup copies, and whether such policies are in writing.

Describe all efforts and procedures taken by [plaintiff/defendant] since the filing of this action to gather and secure documents, including, but not limited to, electronically generated or stored word processing files, electronic mail, and backup copies of information that may be relevant to the facts of this case.

Describe all record retention and destruction policies and procedures followed by [plaintiff/defendant] during [period] including, but not limited to, the date the policy was adopted, the types of documents covered and the respective retention periods, the frequency of document destruction, whether any record is kept of what documents are destroyed, the manner the policy is communicated to [plaintiff's/defendant's] employees, and the identity of all employees with responsibility for implementing and executing the policy.

Handling Spoliation / Preservation of Computer-based Evidence

Sample language for a letter to opposing counsel requesting preservation of computer-based evidence:

Dear ---:

This letter is written to remind you that electronically-stored information is an important and irreplaceable source of discovery in this matter. Printed copies of information from computer-based documents do not include all of the information in the electronic files, and therefore do not suffice to preserve the evidence. Note that the obligation to retain discoverable materials is an affirmative one, and requires that those having notice of discovery obligations communicate those obligations to the appropriate parties.

I trust that [CLIENT NAME] is on notice to preserve whatever computer storage devices (including but not limited to backup tapes, hard disks, and removable disks) they may have used during [TIME PERIOD]. We certainly would not want to find out later that responsive computer-based information is no longer available because it was destroyed in the normal course of business after the date of our request.