Duty to Preserve Your Legal Firm’s Electronic Documents

Protect Your Clients, Employees & Your Firm

You know your clients and your firm are staying within the proper guidelines and following regulations (FRCP, FINRA, HIPAA, among others). The question is: Can you prove it if you or they are sued? Speed is key! How quickly can you access and present evidence? Will your eDiscovery solution take seconds or days? Are you or your clients properly archiving all electronic communication? Is there a policy in place? Are your clients or your firm in compliance with that policy? What if something was accidently deleted? Could you easily retrieve it to prove you were compliant all along?

Duty to Preserve

According to the “Federal Rules of Civil Procedure” (FRCP), organizations have a “Duty to Preserve” all Electronically Stored Information (ESI). (Preserve your Legal Firm’s Electronic Documents)“The amendments to the Federal Rules of Civil Procedure (FRCP) describe the duty to preserve potential evidence when litigation can be reasonably anticipated.” If you are involved in potential litigation, you will need to be able to quickly and easily access, search, place litigation holds and publish ESI, otherwise, your organization could face fines, sanctions and other similar penalties.

Recent “Duty to Preserve” Court Cases:

Zubulake v. UBS Warburg LLC, 2004 U.S. Dist. LEXIS 13574, (S.D.N.Y. 2004) ( Zubulake V),outlined the duties of counsel to preserve potentially relevant evidence. This ruling, comprises some of the most often cited in the area of electronic discovery, and were made prior to the 2006 amendments to the Federal Rules of Civil Procedure

Phillip M. Adams & Assoc., LLC v. Windbond Elecs. Corp., 2010 WL 3767318 (D. Utah Sept. 16, 2010) In this case, the court reaffirmed its earlier holding regarding the trigger for a defendants’ duty to preserve, namely that “in late 1999 the entire computer and component manufacturer’s industry was put on notice of a potential for litigation regarding defective floppy disk components (“FDCs”) by the well-publicized settlement in a large class action lawsuit against Toshiba.” Accordingly, for defendant MSI’s failure to uphold its duty to preserve, the court found sanctions were warranted.

Viramontes v. U.S. Bancorp, No. 10-761, 2011 WL 291077 (N.D. Ill. Jan. 27, 2011) This case reiterates that organizations need not keep ESI for legal or regulatory purposes until the duty to preserve is reasonably anticipated. As with other evidence, ESI cannot be intentionally destroyed. In fact, businesses have an affirmative duty to preserve relevant ESI.

Apple Inc. v. Samsung Electronics Co., LTD, Case No.: C 11-1846 LHK (PSG), Slip Op. (N.D. Cal. July 25, 2012) The primary focus of this case was the Defendant’s failure to disable the biweekly auto-delete feature of its proprietary email system despite a duty to preserve. Compounding the problem was Defendant’s failure to follow up with its employees to ensure their compliance with the litigation hold. Rather, it was within each employee’s discretion whether to save relevant documents. As a result of these failures, relevant emails were lost. Accordingly, after finding that the Plaintiff had been prejudiced by the Defendant’s spoliation, the court ordered that the jury be informed that the Defendant had failed to preserve evidence and that they may presume that such evidence was both relevant and favorable to the plaintiff.

Be Prepared

Retain protects your clients, employees, and your firm’s reputation. It saves you time and money. It enables you to prove your case. It protects your employees because all electronic communications, such as email, social media and mobile communications are safely archived and easily retrievable. All content is searched and delivered in seconds showing the complete conversation thread. As a result, all electronic communication is readily discoverable and exportable for eDiscovery, auditors and court mandates to support your case.

For more information on being prepared for litigation and Retain, visit our website!

Protect Your Clients, Your Employees & Your Firm. Don’t Risk it! Retain it!

Que Mangus

Director of Product Marketing

Micro Focus

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