A hot area in the in house world right now: preservation of electronic evidence or "e-evidence." These days, more and more evidence exists only electronically. However, the fact that a piece of evidence is never printed on a piece of paper does not absolve in house counsel of the obligation to safeguard it.
As in house counsel, if there is a reasonable likelihood of litigation on a matter or if a matter is already being litigated, you have a responsibility to preserve evidence under the Federal Rules of Civil Procedure. This includes monitoring preservation of e-evidence. You must take steps to make sure that you do not fall short of this duty, or both you and your company could face major repercussions.
So what do you need to protect and preserve? The American Bar Association General Practice and Solo and Small Firm Division recently discussed this issue. In short, whenever it can be "reasonably anticipated" that an action will be filed, you must preserve all potentially relevant evidence or run the risk of facing sanctions.
The GPSolo article pointed to three actions that you must take under the case Zubulake v. UBS Warburg LLC.
As soon as litigation reaches the point of becoming reasonably likely, you should issue a "litigation hold," and re-issue the hold as a reminder to make sure that the employees of the company take the appropriate steps to ensure they are monitoring the preservation of evidence.
You should identify and contact the employees who are most likely to have relevant information and communicate with them directly to make sure that they are aware of their duties with regard to preserving evidence. Such employees are considered "key players," and they will be identified in a parties initial disclsoures and in any additional supplementation.
You should make sure that all employees produce electronic copies of their relevant files and to properly locate and store backup copies. When necessary, you should take possession of the backups to protect them from being lost or deleted.
When companies have failed to properly preserve evidence, including e-evidence they have faced serious sanctions, including millions of dollars in penalties, having your answer stricken, being ordered to pay the opposing sides fees and costs, having evidence withheld, facing negative jury instructions and in extreme cases, even having the case dismissed. By being proactive and vigilant, you can help your company avoid sanctions and stay ahead of the game.
- Advising the Corporate Client on the Duty to Preserve Electronic Evidence (Farella Braun + Martel LLP)
- Electronic Discovery (FindLaw)
- e-Discovery & Preservation Obligations - Getting Ahead of the Game! (FindLaw)