The ease at which data in the Information Age can be stored and deleted is both a blessing and a curse. We create new letters, new invoices, and new emails. We clean out old emails, buy new and bigger hard drives, and archive old reports. Our IT staff (if we have one) rotates backup tapes. We update databases, usually over-writing what was there before. We delete old files (or at least we should!) to make room for more. We defragment our drives to speed up our computer’s responsiveness. We use spam filters to delete, or at least hide, unwanted email and advertising.
But what if, in these day-to-day processes, we delete evidence relevant to litigation that is pending or that we should have known about?
The e-discovery amendments to the Federal Rules for Civil Procedure recognize the concept of reusing computer resources and include the concept of a Litigation Hold. As soon as a party knows of, or should have known of, pending litigation, it must stop all activities that could delete relevant information and preserve all potentially relevant electronically stored information (ESI).
As the trial attorney, how do you get the word out to your client to stop deleting potential evidence? The answer is a Litigation Hold Notification. The plaintiff attorney should issue such a notification to his/her client and to opposing counsel. Such notices should also spell out whether there are any requirements to preserve new ESI as well. In my next blog, I will discuss the need for clients to have a Litigation Hold Plan, but attorneys need to be prepared to ensure that ESI is preserved. In real life, that often means creating a preservation plan for the first time.
But the attorney’s responsibility doesn’t stop with just issuing the letter. As Judge Scheindlin told the UBS Warburg attorneys in the Laura Zubulake case, counsel has an affirmative responsibility to ensure that ESI is being preserved. This affirmative responsibility means repeatedly contacting the major players to remind them of the responsibilities and auditing their compliance. A single letter just won’t do it in the light of Judge Scheindlin’s ruling.
One solution is for the trial attorney to have an e-Discovery Liaison or e-Discovery Coordinator. This can be someone in the firm or an outside technical expert. Another approach is to have a team (I often call it a SWAT team) within the client’s organization. This team has the responsibility for creating, documenting, and monitoring the company’s ESI preservation policy.
One thing is clear, the role of the trial attorney is changing. I believe the attorney who knows the most about e-discovery, and about this changing role, will have an upper hand in litigation.
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