E-discovery works both ways. A party not only has the right to obtain electronic information from its adversary, but it also has an obligation to produce similar information. Of course, to produce information, you must have it in your possession or control. And, as Martin O'Hara discussed in his recent article, control can extend to third parties in certain circumstances. Information that has been destroyed or discarded obviously cannot be produced. This is especially true for e-discovery. If such information has been destroyed or deleted, it can be difficult, if not impossible, to recover and produce. And that can be a problem. In fact, not having information can often cause a bigger problem than producing it.
Why? Because once a party, either during or before litigation, reasonably believes that it has information that could be relevant to a dispute, that party has a duty to preserve that information. If the party does not preserve evidence, but instead destroys, loses or hides it, that party could very well be guilty of spoliation and subject to various claims and sanctions. One sanction would be an adverse inference. This means that a jury could be instructed to assume that the information contained on the missing documents was harmful to that party, leaving to the jury's imagination what the documents actually showed. As we all know, it is easy to think the worst when given the chance to do so. In virtually every case, the jury may make assumptions that could be far more harmful than what may have actually been on the missing documents.
So what should in-house counsel do? At the earliest possible time, you should instruct all appropriate personnel to maintain all documents, including paper electronic documents and emails that might in any way be pertinent to the dispute. You should immediately suspend any routine document destruction and instruct the relevant personnel not to delete other materials relating to the matters at issue in the case. You should also suspend any routine overwriting or elimination of back-up tapes or other media.
Importantly, you should also extend the scope of the preservation protection to include not only your internal computer system and servers but also the personal electronic devices of associated personnel, such as smartphones (including voicemails) and tablets that might house relevant information. And, of course, as Mr. O'Hara reminded us, you also must expand the scope of protection to third parties within your control.
Obviously, to properly preserve such documents can be an expensive and difficult undertaking. But in today's world, it is a critical task that organizations should never ignore. Working with counsel and outside consultants can help.