Preserving E-evidence Rules Change; Safeguards Needed By Jake R. Fulcher
Imagine this scenario: A CEO e-mails the company’s senior vice presidents concerning a workforce reduction still in the planning stages. The CEO suggests in her e-mail that the company’s workforce needs to be more flexible and technologically savvy, and that it would benefit from having more youthful employees who can better connect with customers. Even though the senior VPs share the same floor with the CEO, this message is e-mailed.
The CEO, unknowingly, has just created Exhibit A in an employment discrimination lawsuit. And when the court orders the company to turn over this and any other material that may be relevant to the case, the process of electronic (“e”) discovery will have to be undertaken.
E-discovery relates to any information, data, images, media or documents that are stored electronically. The task can be daunting because most companies today store the vast majority of their information and communications electronically. For this reason, the Federal Rules of Civil Procedure (Rules) that govern e-discovery were amended on December 1, 2006 to provide significant guidance on how to conduct e-discovery.
Using the added term “electronically stored information” (ESI), one amendment to the Rules defines the obligation an attorney has to his client and opposing counsel to discuss the existence, location and storage of ESI, and what ESI should be preserved as relevant to the case.
The Rules also require that shortly after a lawsuit is filed, the attorneys involved must meet and confer on issues of the case including the location of ESI, whether it is reasonably accessible and the method by which it will be produced for the other party.
Because of this, attorneys and clients involved in cases requiring e-discovery should fully understand the workings of clients’ information systems, including where electronic information exists and how it is created, stored, deleted and managed. This is best achieved by working with information technology (IT) personnel to create a comprehensive map of the workings of the system, which might include computers, servers, cell phones, personal digital assistants, blackberries, thumb drives and home computers.
Triggering the duty
When an organization receives notice of a lawsuit – or of the threat of a pending lawsuit – the organization and any involved personnel immediately fall under a legal duty to preserve all paper and electronic evidence that is potentially relevant to the case. At this point the organization and/or its attorney should send a “litigation hold” letter ordering involved personnel and the IT department to halt all normal document and ESI destruction policies.
There is no defense for destroying documents during a litigation hold, including standard document destruction policies. Failure to properly preserve evidence can result in a number of sanctions against the offending organization, including exclusion of testimony by the party that destroyed the evidence (known as the spoliator), entry of a judgment against the spoliator or an order requiring the spoliator to pay costs and fees associated with discovery and deposition issues.
If there are employees involved whom it is felt might begin deleting e-mails upon receipt of the litigation hold order (especially key witnesses or decision makers), it is wise to instruct the IT department to make a mirror image of those individuals’ hard drives immediately upon receiving the hold letter.
The amended Rules include a “safe harbor” clause that prohibits the court from penalizing an organization that destroys an employee’s stored information during routine ESI management procedures (despite the organization’s preservation efforts and investigation of the facts) when that employee was not named in the initial litigation hold letter.
Must everything be preserved?
The amended Rules state that relevant, reasonably accessible ESI must be produced during e-discovery. But it is noted that a party need not produce ESI if it is not reasonably accessible because of undue burden or cost. While the Rules don’t define “reasonably accessible,” the term generally refers to ESI that exists in a format that does not need to be manipulated to be produced. Regardless of whether ESI is reasonably accessible or not, under the law, all ESI subject to the hold must still be preserved.
When a company fails to perform a thorough search for ESI and thus overlooks relevant information, it can face the same consequences as those imposed for destroying or failing to preserve known evidence. Rest assured that if any organization is involved in a federal lawsuit, its ESI will be thoroughly searched by the opposing party’s computer forensics expert.
Because the future is unpredictable, all organizations should implement an ESI management policy that outlines what e-mail is appropriate and what is not, which documents should be saved and when, and what information can be overwritten without danger of destroying potential evidence. Those who don’t create these safeguards are risking the consequences.
Author: Jake R. Fulcher is an associate attorney with the Labor and Employment Law Group of Kahn, Dees, Donovan & Kahn, LLP, established in Evansville in 1908. He can be contacted at (812) 423-3183 or www.kddk.com. This article is not intended to serve as legal advice.
Preserving E-evidence 