In follow up to a previous article, “Spoliation of Evidence,” this article addresses the topic of what the courts expect in terms of the preservation of evidence required to avoid spoliation. The authors strongly believe that this process should be planned for and tested, not explored for the first time under "live fire" conditions. While spoliation refers to the destruction, or material alteration, of evidence (intentionally or not), preservation is that phase of E-Discovery which prevents spoliation. This, by its very definition, defeats claims of spoliation, as material potentially relevant to litigation (or responsive to a subpoena), is preserved and not altered. Thus, the protocols of preservation are critical to avoid costly litigation and possible sanctions related to a charge of spoliation.
The preservation duties of a business fall into a four phase process: (1) The “trigger” event, or that event which heralds the duty to preserve, (2) the litigation hold letter, (3) proactive evidence of preservation and management, and (4) documentation of the preservation.The “trigger” event. “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.”[i] “Reasonable anticipation of litigation arises when an organization is on notice of a credible threat it will become involved in litigation or anticipates taking action to initiate litigation.”[ii] The event itself can be anything from the very formal service of a law suit to something as informal as an email from an employee suggesting that s/he may consult an attorney on a legal matter. Whatever the trigger, once the duty to preserve arises, the organization should begin to identify what information should be preserved, and in whose possession that information resides (in the parlance of E-Discovery, “the custodian,” or “key player”).The litigation hold. A legal hold is a part of the preservation process that has very specific requirements. Most often, it is issued by counsel to the custodians of potentially relevant information. “[F]or a company merely to tell employees to ‘save relevant documents’ is the sort of token effort [that] will hardly ever suffice.”[iii] The litigation hold is a highly structured phase that normally begins with the issuance of a written hold letter to key custodians, with the goal “…to ensure that all sources of relevant information are identified, that these sources are carefully preserved for future review, and that relevant non-privileged materials are eventually produced to the opposing party.”[iv]
Preservation. The issuance of the litigation hold must be followed by counsel’s (or counsel's trained para-professionals') direct communication with those employees who are most likely to have knowledge and information relevant to the case, normally called custodial interviews. Each employee will have numerous potential data locations that must be preserved (i.e. paper files, emails, texts, social media accounts, voicemail messages, laptops, PDAs, etc.). This process must be a proactive one, which underscores the continuing duty to ensure preservation. “The implementation of a legal hold should be regularly monitored to ensure compliance.”[v]
Documentation for defensibility. Documentation of the preservation (or authentication) requires specific tracking of when and how what was preserved is acquired, as well as to how it is maintained from collection through trial.[vi] Documentation of a company’s decision which leads to preservation, of the litigation hold, and of the entire preservation process is essential in litigation. “Regardless of the steps taken, a record of compliance can be very useful in defending any challenges to the organization’s good faith efforts to meet its preservation obligations.”[vii]
Additionally, documentation serves as evidence of a company’s compliance with a litigation hold and other preservation activities. “To ensure the litigation hold is followed and implemented, counsel should require a signed certification by the employee that the litigation hold notice has been received, understood and implemented.”[viii]
It has been noted that “80-90% of the legal risk in e-discovery occurs at the preservation stage.”[ix] Consulting with counsel when a question arises about a trigger event, initiating preservation procedures and protocols at the earliest possible moment following such an event, and documenting a defensible process will all go a long way to protecting a company in a legal environment with increasingly stringent preservation duties. Pre-planning for preserving evidence is critical to a smooth and successful process.
The reader will note several references to The Sedona Conference® throughout this article. The Sedona Conference® is a nonprofit institute that brings together judges, attorneys, academics, and experts for the purpose of contributing to the evolution of the law with regard to the infusion of technology into the legal world, particularly since the December, 2006 amendments to the Federal Rules of Civil Procedure concerning the discovery of electronically stored information (ESI) in civil litigation. Its publications are often cited by federal judges in decisions involving ESI. As many of the judges who are at the forefront of spoliation decisions sit on The Sedona Conference® Board, its views, analyses, and principles are viewed as authoritative.
[i] Judge Shira A. Scheindlin, Daniel J. Capra, and The Sedona Conference®, Electronic Discovery and Digital Evidence,(St. Paul: Thomson Reuters, 2009).
[ii] The Sedona Conference, “The Trigger and the Process,” The Sedona Conference® Commentary on Legal Holds, August 2007, p.5.
[iii] Samsung Electronics Co., Ltd. v. Rambus, Inc., 439 F. Supp.2d 524, 565 (E.D.Va. 2006).
[iv] Judge Shira A. Scheindlin, Daniel J. Capra, and The Sedona Conference®, Electronic Discovery and Digital Evidence,(St. Paul: Thomson Reuters, 2009), summarizing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004).
[v] The Sedona Conference, “The Trigger and the Process,” The Sedona Conference® Commentary on Legal Holds, August 2007, p.16.
[vi] United States v. O’Keefe, 2008 WL 449729 (DC February 18, 2008).
[vii] The Sedona Conference, “ Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age,” The Sedona Guidelines, September 2005, p.48.
[viii] Judge Shira A. Scheindlin, Daniel J. Capra, and The Sedona Conference®, Electronic Discovery and Digital Evidence,(St. Paul: Thomson Reuters, 2009).
[ix] Guidance Software, “The Seven Best Practices of Highly Effective eDiscovery Practitioners: Powerful Lessons in eDiscovery Success,” Guidance Software White Paper, 2010, p.4.