One of the most important legal needs with regard to litigation and discovery is the preservation of evidence. Hopefully your legal clients, and your firm, are complying with the proper archiving guidelines and following regulations – FRCP, FINRA, HIPAA, among others. The question is: Can you search, through and provide the data if you or they are sued?
Speed is key! How quickly can you access and present email evidence or text messages? Will your eDiscovery solution take seconds or days? Are you or your clients properly archiving all electronic communication? Do you have a communication archiving policy in place? Are your clients or your firm in compliant with that policy? What if something was accidentally deleted? Could you easily retrieve it to prove you were compliant all along?
Protect Your Clients, Employees & Your Firm, Don’t Risk It, Retain It!
According to the “Federal Rules of Civil Procedure” (FRCP), organizations have a “Duty to Preserve” all Electronically Stored Information (ESI). “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.
Another important note, retaining electronic communication for ediscovery is not just limited to email. As you can see above, the FRCP clearly states you have a duty to preserve ALL ESI. This includes email, text messages, and even social media. Text messages, social media, and instant messages are increasingly at issue in investigations and litigation. Unfortunately, extracting data from mobile devices can be expensive and time consuming, if possible at all. Consequently, companies should consider implementing appropriate controls over employees’ business-related text and instant messaging, particularly on mobile devices, like an archiving solution.
*Important Update as of December 2015* A new version of Federal Rule of Civil Procedure book went into effect December 1, 2015. Subsection 37(e) replaces the previous subpart in its entirety, and features a new title: “Failure to Preserve Electronically Stored Information.” In addition to this amendment to the previous rule, Rule 37(e) is accompanied by official Committee Advisory notes that clearly call out counsel to preserve clients’ ESI, and that counsel should. “… become familiar with their clients’ information systems and digital data – including social media – to address these issues.” The implication of the new law is clear: social evidence is given at least equal weight and import as other forms of ESI such as email and documents.
Link to full FRCP text https://www.law.cornell.edu/rules/frcp/rule_37
Important “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.
Clear-View Technologies, Inc. v. Rasnick (No. 13-cv-02744-BLF, 2015 WL 2251005 (N.D. Cal. May 13, 2015)
Primarily focused on when the duty to preserve was triggered, which the court held it was approximately two years before the suit was filed. This case is noteworthy for what the court found should have been preserved. The court sanctioned defendants for, among other things, having deleted relevant text messages and having “lost or thr[own] away” several mobile devices (including iPhones and an iPad) used to access relevant communications and documents. See id. at *5. The case reflects that where unique and relevant electronically stored information is contained in text messages and stored on mobile devices, courts increasingly will hold parties responsible for their preservation.
Fidelity Nat. Title Ins. Co. v. Captiva Lake Inv., LLC, No. 4:10-CV-1890, 2015 WL 94560 (E.D. Mo. Jan. 7, 2015)
Sanctions were imposed by the court on a plaintiff whose failure to institute a litigation hold resulted in the mass deletion of relevant emails. Following a protracted dispute between the parties regarding the adequacy of plaintiff’s production of ESI, the court granted defendant’s request for a specialist to examine plaintiff’s computer systems. The court found that the email deletions likely caused the loss of discoverable emails and that the defendant was prejudiced by the loss of these emails. The court issued an adverse inference instruction with respect to the deleted emails and ordered plaintiff to pay fees and expenses related to the delay caused by its “mishandling of discovery.”
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.
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Don’t Risk it! Retain it!
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