eDiscovery Daily Blog

• January 20, 2022

Emails, Slack messages, tweets, and digital documents are just a few data types that a company may generate on a daily basis. Thankfully, businesses aren’t required to store all electronic records indefinitely. A party, however, must preserve evidence before litigation begins or whenever the party suspects the information may be relevant to anticipated litigation. Spoliation refers to the failure to preserve relevant information during contemplated or pending litigation. According to the FRCP, intentional spoliation may result in dismissal of action, default judgment, or court/jury presumption that the missing information was unfavorable to the responsible party. If unintentional, the court may impose measures no greater than necessary to cure the prejudice. [1] Though the FRCP offers examples, sanctions may be imposed at the court’s discretion. Other sanctions for spoliation may include monetary fees, precluding a party from introducing other evidence, and a motion to strike out pleadings. [2]

Strategies for Preventing Spoliation

• Identify all potentially relevant evidence by considering the mediums and locations in which the data may be stored. This can be done by questioning potential custodians through questionnaires or personal interviews. Be mindful that relevant evidence can come in various forms: videos, emails, Word documents, social media posts, etc.
• Utilize a litigation hold to instruct employees against deleting relevant information. Make sure to send the litigation hold to the IT department if any automated deletion programs need to be stopped.
• After sharing the litigation hold, issue reminders to custodians of its existence. Merely having the memorandum may not be enough to avoid sanctions. Thus, companies should remind custodians to fully comply with the instructions. [3] Companies may also opt to require written confirmation from employees to confirm they have received the litigation hold.
• Check your employees’ understanding of their preservation obligations. This can be done by leaving space for questions and confusion surrounding the litigation hold’s instructions.
• Properly collect and store your ESI. It may be wise to make copies of any relevant information. [4]
• If necessary, hire an independent expert for the collection and production process. Doing so will reduce your risk of spoliation greatly. If spoliation still occurs, employment of the expert may be considered as evidence of the company’s good faith. [3]

[1] “E-discovery and the Duty to Preserve,” Constangy Brooks, Smith & Prophete LLP, June 20, 2016.

[2] Michael W. Mitchell and Edward Roche, “Lessons Learned: Destroying Relevant Evidence Can Be Catastrophic in Litigation,” Smith Anderson, August 6, 2020.

[3] Rebecca Edelson, Seong Kim, and Angela Reid, “3 Steps in Furtherance of Avoiding Devastating Spoliation Sanctions In Trade Secret Misappropriation Litigation,” Mondaq, December 9, 2019.

[4] James Floyd Jr. and Ryan Owen, “Don’t Delete That Data! Actions Required to Satisfy Document Preservation Obligations,” JD Supra, October 26, 2021.