Before You Delete, Ask Yourself: Could This Be Evidence?

(Originally published in The Business Journal)

Every day, you and your employees probably delete dozens, maybe even hundreds, of email messages. But, when you do, could you be destroying evidence?

It’s possible, because emails are documents, and they may be relevant in court later on.

When a company becomes aware that a lawsuit is possible, it is under a duty to preserve evidence relevant to that pending litigation. If it does not preserve such evidence, it may be subject to state or federal sanctions, including having a judgment rendered against it. In many such cases, deleted emails are the culprit.

To protect your company from such sanctions, you need to have a litigation hold policy. Such a policy outlines the general steps a business must take to respond to legal action when it is necessary to preserve relevant information.

“But we already have a document retention policy,” you might argue. “Isn’t that sufficient?”

The answer is no, because a retention policy provides only general, day-to-day guidelines for how long certain documents should be kept, and how they should be destroyed.

A litigation hold suspends your company’s retention policy for documents that may be relevant to a lawsuit.  It supersedes the retention policy for some or all of a company’s employees, and preserves relevant evidence for later discovery by immediately halting any destruction of that evidence.

This may involve saving particular emails that discuss a particular subject, or that are from a particular individual. It may also include the mere imaging of a hard drive. It applies to both paper documents and electronic information.

A litigation hold policy outlines procedures for how your company will respond to particular litigation. It does not – nor could it – provide specific details, because those will vary depending on the litigation.

That is why your policy needs to identify a litigation response team, including management, legal counsel and technology personnel, to implement the policy.

You should consult with personnel who are knowledgeable about the types of information generated, obtained, and retained by your company – including emails, databases and intranet information (such as company policies and personnel information) – and how the information is maintained.

For example, is the data accessible or inaccessible? Can it be obtained from a non-accessible source? Can the data can be searched and sorted? (If so, how?) Is the electronic information marked to allow for easier identification and segregation – such as by author, editor, date, subject matter, or privileged status?

The law requires the preservation of evidence only when litigation is “reasonably anticipated.” While somewhat ambiguous, this means that the facts and circumstances of each case will dictate when a company should reasonably anticipate litigation. That is the point at which a company should implement a litigation hold policy.

Should a company reasonably anticipate litigation every time a customer complains? Probably not. But there may be times when a customer complaint may trigger the duty to preserve.

For example, the complaint may come from the customer’s attorney. But a company may reasonably anticipate litigation before then. Sometimes an attorney will send what is called a preservation letter to a company. This letter will indicate that litigation is anticipated regarding a certain situation and that the company is on notice to preserve all relevant information.

Once the duty to preserve is triggered, a company must take immediate action to preserve all relevant evidence. This includes immediately contacting your legal counsel and calling together the implementation team. Without an effective and workable litigation hold policy, a company runs a high risk of not complying with the duty to preserve evidence.

Furthermore, not having a litigation hold policy can be costly; one court, in sanctioning a company, held that its failure to have a litigation hold policy demonstrated reckless behavior.

Finally, it is not enough to simply send a letter to all relevant employees telling them to stop deleting emails, or to the technology supervisor telling him or her to stop the automatic recycling of backup tapes.

Your company’s legal counsel must take an active role in making sure that your employees are complying with the preservation policy. It is essential that they be periodically reminded of their continuing obligations to preserve.

Vansuch can be reached at mvansuch@hhmlaw.com or at (330) 392-1541