Parties to litigation have an obligation to produce all documents under their care, control or power. Under most rules of court, “documents” include items created electronically, such as standard office suite documents, e-mails, text messages, voice message records and other electronic artifacts. Often, a failure to produce a document relevant to the issues in the litigation could result in the court making negative findings against your case at trial, having your evidence struck, and could even include more extreme measures such as costs against you or other sanctions.
Electronic evidence can be volatile, and can be destroyed or altered even without your intending to do so. Therefore, when you are sued, it is important to take steps to make sure electronic documents are preserved and not destroyed or altered so that they can be produced in court.
The obligation to preserve documents arises as soon as you become aware of a claim or potential claim – not when you retain counsel.
Here are five key steps you should take once you are sued, or know you may be sued:
- Make someone responsible. Make someone in your organization responsible for taking the following steps. Make sure they keep a record of everything that they do. Pick someone with enough authority and skills to actually follow through on implementing the steps below.
- Stop routine destruction. Some computer applications and systems are set up to automatically purge or destroy documents at preselected intervals. E-mail systems and document management systems, in particular, are at risk of purging and data destruction. Make sure you inquire as to what the destruction and deletion procedures are, and stop the routine deletion, if necessary. Also consider taking steps to stop destruction or recycling of routine backup tapes. This step can have significant consequences. You may need to buy additional storage or backup media. Consider too the configuration of your active directory, and whether there are any profiles which are about to expire; make sure these expiry dates are extended if necessary. Finally, consider routine hardware or media replacement schedules as you can end up accidentally deleting data by replacing someone’s laptop. Before you resume routine deletion or destruction activities, consider consulting with litigation or e-discovery counsel.
- Develop a data map. In order to figure out which of your electronic records might be needed for the litigation, you’ll need to know what data you have and where it is. How are your IT systems configured? Do people connect to the network, or are they remote or offline? Where is the data stored? Is it local (on machines) or networked? Is data in archive systems or backup systems? Make a list of all the places your organization stores data, what might be stored where, and in what format. In particular, make a note of places where data may be volatile or at risk, including systems that might store data that can be easily overwritten, including in databases and on mobile devices, or data that might be at risk because individual people and machines or systems need to be moved or are mobile. Take any necessary steps to secure that data if it is important to the litigation.
- Identify Custodians. Custodians can be people or systems that probably know something or have information about the subject matter of the litigation. Make a list of them. This will be important later on. Do this exercise early, and make sure you also consider how information flows through these people. For example, does a person send correspondence out through an assistant or direct or indirect report? If so, include those people on the custodian list too. Custodians can also be systems, including shared network drives, so make sure you include such places on a custodian list.
- Issue a Litigation Hold notice. Preserve documents, and make sure key people in the organization know of this obligation. If you cannot identify custodians or systems, you may want to send the notice out to a broad range of people or the whole organization. If you have completed the data map and the custodian list, you can target the notice to those people. Advise people what the litigation is about and the scope of what you need them to retain. If you don’t know what documents they need to retain, get legal advice on this issue. It is also helpful to set up a system to audit people’s compliance with the notice, so that you can show, later on, that the notice was sent out, received, read and understood, and complied with. There are web-based systems that can help with this, but an effective system can also be set up with response buttons on an e-mail system and an excel spreadsheet. As a final note, make sure that custodians preserve paper.
Preservation is an important early step in preparing for litigation. The earlier you know what information you have, the easier it will be to educate your lawyers about your position, and develop a streamlined system to collect documents that might be required in the litigation. Remember – just because you preserve it doesn’t necessarily mean you will collect and review it; however, you can’t produce what you haven’t preserved.