Preserving Your Own Evidence (Or, People Who Live In Glass Houses ... )

The first step to ensuring success in litigation is to make sure that your own house is in order


Those rules also make parties responsible not only for evidence in their immediate possession, but also evidence within their “control” [think text messages on employer-issued smart phones or documents generated by engineering consultants for new construction or infrastructure projects].

The case law on what must be preserved is inconsistent. What must be preserved is guided by principles of “reasonableness and proportionality.” Courts acknowledge the difficulty in deciding what files may be deleted or backup tapes that may be recycled. Until a more precise definition is created by rule, a party is well-advised by courts to “retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches.”

Even if you previously considered the issue of records preservation, did you think about the format in which the records must be saved? The careful approach is to preserve all evidence in its native format to avoid cost-shifting and fines — original voice mail recordings and software that is not commonly used by the general public.

Courts are split on whether preserved evidence can be “downgraded.” One federal magistrate found that the printing of relevant electronically stored data (and destroying the electronic file) was insufficient preservation.

  • c. What steps should be taken to preserve evidence?

Although it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant documents and electronically stored information, the unpredictability of how a court will rule years later on a company’s preservation efforts suggests taking proactive conservative preservation measures.

These include: (1) preserving all relevant records (both paper and electronic); (2) implementing procedures for the preservation of evidence, commonly referred to as instituting a “Litigation Hold”; (3) suspending your routine document retention policy and preserving all documents; (4) collecting relevant records so that they may be searched by counsel; and (5) notifying all employees and agents likely to have relevant evidence of the issuance of a litigation hold, the suspension of routine document retention policies, the request that relevant materials be gathered, and that those materials be provided to a designated person within the company or to counsel.

The law is very clear that failure to implement a litigation hold at the outset of litigation amount[s] to gross negligence.

How do you properly implement a litigation hold? You need to identify: (1) how your organization stores materials and information; (2) identify the source of materials that are most likely to be relevant and identify the individuals who are most likely to have possession of relevant materials and information; (3) identify the “key players” within the organization that may have relevant information; and (4) identify organizations and individuals over whom the organization exercises control such that the duty to preserve would be extended to them as well.

Don’t forget that a party may be held responsible for the spoliation of relevant evidence done by its agents — think engineers and various consultants helping you with construction permitting, work on fire suppression systems, surveys for upgrading drainage systems, etc.

You must also monitor compliance with the litigation hold. Consider reviewing your internal document retention policies and updating those policies so that you can demonstrate compliance when you need to.

Conclusion

The decision to initiate litigation is not something to be taken lightly. As you consider whether to litigate, take steps to ensure that your own house is in order.

Thoroughly preparing for litigation as you investigate potential claims will go a long way toward maximizing your chances of success in the shortest period of time.

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