1. The 12/1/06 rule changes make explicit the duties that already existed. Electronically stored information (ESI) has been discoverable for a long time. The courts have applied the prior rules of civil procedure and developed several duties concerning e-discovery:

a. duty to understand your client’s ESI system

b. duty to preserve ESI

c. duty to locate, disclose, and produce ESI

2. Duty to preserve ESI:

When does it arise? Usually before the client even consults an attorney. In a non-ESI context, Fourth Circuit has ruled that the duty to preserve evidence arises when a party reasonably should know that the evidence may be relevant to anticipated litigation.