Or, a court might require your opponent to create a computer program that translates raw data into a readable form for you. The higher your adversary's cost of complying with your EMD requests, the more courts scrutinize the material sought, and compare it to what could be produced in hard copy. Weighing the cost against how crucial the material is, courts may even require your company to pay for the EMD you seek. Document Retention Policies and Spoliation. A company's document retention policies are often different for hard documents than for electronic data.
Document retention is also a murkier issue when it comes to electronic data.
Courts have started to focus on what constitutes sanctionable spoliation of evidence in the electronic realm. At least one court permitted a party to physically examine an adversary's computer system if the party could demonstrate a likelihood of retrieving purged information. Obtaining EMD Notify Opposing Counsel To Preserve Electronic Evidence. When documents are stored electronically, it is important to notify your adversary to preserve electronic evidence as soon as litigation commences, or earlier if feasible. Otherwise, an adversary may destroy relevant evidence merely by continuing its regular policies, which may include overwriting data.