Process Driven Spoliation
In a previous article, I discussed the penalties that a company can suffer as a result of the destruction of electronic documents either in the middle of a litigation or when litigation has been contemplated. The term used for the destruction of such documents or communications is spoliation. However, many companies have the problem of Process-Driven Spoliation (PDS). That is where a system is in place to automatically destroy electronic documents and communications. Although automated PDS processes are an integral part of business procedures, failure to identify your client's PDS processes in a timely manner may result in sanctions if not haltered when litigation is reasonably anticipated.
The following steps must be taken in planning when litigation is anticipated:
- At the first sign of potential litigation, attorneys must contact their clients and institute an immediate litigation hold. It should be broad enough to cover any potential areas of the suit, but narrow enough to not impose a large burden on your client's business.
- After the litigation hold is issued, the client's I.T. department should list all automated processes that result in the destruction of data including e-mail systems.
- An attorney must maintain constant contact with the client to ensure that the hold is actually taking place. Both attorneys and clients may be sanctioned even if the instruction to hold documents is given but not properly followed by the party. An attorney should know when the hold was issued, the time period of documents affected, the names of the people responsible for the hold and detailed steps taken in response to your litigation hold request.
- You must keep experts in mind. If technical issues are complex, you will want to engage in independent experts in the field who will work with the client to review the information provided by the I.T. department and provide attorneys with guidance in complex areas.
In dealing with opposing counsel, you will want to limit their ability to claim ignorance of the processes that result in spoliation. There are several steps to do this:
- Issue a preservation letter to opposing counsel early in the case.
- Discuss spoliation issues at the first meeting with opposing counsel and the Court.
- Identify knowledgeable persons. If opposing counsel cannot provide proper answers during such a conference, attorney should ask opposing counsel who and his client has knowledge of these issues.
These are all important steps that must be taken in any contemplated or actual litigation to protect the client from sanctions, which at times can be severe.