A party has a duty to provide four different categories of information before the beginning of the discovery period in litigation in federal court. The categories include:

1. A list of individuals who have discoverable information
2. A copy of all documents that support the party’s claims or defenses
3. A computation of damages
4. Insurance agreements – Fed.R.Civ.P. 26(a)(1).

The failure to preserve relevant documents and ESI may result in sanctions. Accordingly, a potential litigant should take care to preserve documents/ESI that may have to be produced in litigation to avoid the possibility of future sanctions.

For patent-infringement cases, a potential litigant should preserve any documents and ESI that may support a claim of patent infringement or a defense to patent infringement. Such documents/ESI also includes documents/ESI evidencing the validity and enforceability of the patent at issue.

Once the discovery period begins, the parties will be entitled to serve discovery requests upon one another. These may include requests for the production of additional documents/ESI beyond the scope of the documents/ESI that are described above. Accordingly, a potential litigant should exercise caution before destroying documents or deleting ESI in anticipation of litigation.

Certain documents/ESI may fall within the scope of the attorney-client privilege and/or work product doctrine. These documents and ESI do not have to be produced. However, a potential litigant should let its attorneys decide whether a document or ESI has to be produced.

Also, a potential litigant should recognize that the term “documents” has a broad scope. The term “documents” is defined under the Federal Rules of Civil Procedure to include “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained - translated, if necessary, by the respondent into reasonably usable form.” Fed.R.Civ.P. 34(a). The definition includes electronically stored information. Id.

Documents may include books, pamphlets, articles, newspapers, press releases, magazines, booklets, circulars, handbooks, manuals, periodicals, letters, memoranda, files, envelopes, notices, instructions, reports, financial reports, records, studies, transcripts, diaries, formal, informal, comparisons, telegrams, cables, telex messages, communications (including reports, notes, notations, and memoranda of, or relating to, telephone conversations and conferences, minutes, evaluations, projections, statements, summaries, desk calendars, appointment books, telephone logs, questionnaires, surveys, indices, tapes, computer inputs or outputs, microfilms, magnetic tapes and disks and photographs). Different versions of the same documents with handwritten notes or notations in any form, drafts of documents and documents with handwritten notations or marks not found in the original or on other copies are different documents.