In Step 1, we discussed the litigation readiness activities that set the stage for preservation activities. These preservation activities are arguably the most important, as one misstep could result in sanctions, or worse yet, dismissal of claims.
Once you have identified where your client’s data is located and determined what you need to preserve, next you must preserve and protect the data from deletion or alteration. These activities include:
- Notify custodians & IT
- Preserve in place
- Bulk collection by IT
- Witness interviews
- Cross-border issues
Your ethical duty
When discussing preservation activities, we first must acknowledge the common law and ethical duties to preserve evidence. According to The Sedona Principles, “The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation.”
The duty to preserve was discussed at length in the ground breaking opinions of Zubulake v. UBS Warburg LLC in the Southern District of New York. Judge Shira Scheindlin, now known as the Godmother of e-discovery, wrote a series of five opinions in 2003 that formed the groundwork for the e-discovery law we know today. These opinions pre-dated the 2006 amendments to the Federal Rules of Civil Procedure, known as the E-discovery Amendments, and should be studied as an instruction manual for preservation.
The duty to preserve
The fourth Zubulake opinion summarizes the duty to preserve:
The obligation to preserve evidence arises when a party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. Identifying the boundaries of the duty to preserve involves two related inquiries: when does the duty to preserve attach and what evidence must be preserved?
Do not be fooled into thinking that you can wait until litigation is commenced to worry about preservation. Zubulake clearly explains that the duty extends to the time before litigation when a party knows certain evidence may pertain to anticipated litigation. Further, the intricacies and potential pitfalls during preservation activities are many, particularly if you have not performed the litigation readiness activities in Step 1. As discussed previously, the litigation readiness activities set the stage for preservation. The more homework you have done in Step 1, the more prepared you will be for preservation because you will know who you need to talk to, where and how the data is stored, and what data is important and relevant. Without this base knowledge, you will be at risk of failing to preserve crucial information.
The scope of the duty
When trying to determine what you need to preserve, act reasonably. As a general rule, as Zubulake IV said, a party need not preserve “every shred of paper, every e-mail or electronic document, and every backup tape.” When determining the scope of your duty, follow these steps:
1. Identify the who:
a. Who is likely to have discoverable information related to your claims and defenses.
b. Who prepared documents for the people identified above.
c. Who has information relevant to the claims or defenses of any party to the litigation.
2. Identify the what:
a. Must preserve all relevant documents that existed when the duty to preserve attached.
b. Must preserve all relevant documents created since.
3. Put in place a litigation hold:
a. Suspend the routine document retention/destruction policy.
b. If backup tapes are accessible, i.e., actively used for information retrieval, these are subject to the litigation hold (inaccessible backup tapes solely for the purpose of disaster recovery are not subject to the litigation hold).
c. The exception: If you can identify where particular relevant data of key players is stored on backup tapes, and this information is not available elsewhere, then these tapes, regardless if inaccessible or accessible, should be preserved.
It is important to remember the goal — to preserve relevant evidence. If the data exists in only one place, you must preserve it regardless of how difficult or expensive.
The litigation hold
In order to make certain all sources of potentially relevant information are identified and preserved, you must issue a litigation hold. This litigation hold should be in writing and detail the specific information to be preserved. Send the litigation hold notice to key players, their supervisors, the executive team, HR, in-house counsel, IT, information governance personnel and any and all other individuals who may have relevant information to the claims and defenses in the litigation. As counsel, your job is not done once you send your litigation hold notice — an attorney has a duty to monitor and oversee compliance.
In order to achieve this, you must actively discuss the litigation hold with your client. You should be conducting custodian interviews to understand how they stored relevant information. Zubulake V states that counsel “must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture.” Therefore, your duty includes meeting with your client’s IT personnel to understand these policies and procedures.
As part of your duty to monitor and oversee compliance, you should re-issue the litigation hold notices so that new employees are aware of their obligation and current employees are reminded of their continued obligation to preserve and produce relevant active files.
Finally, once you have identified and preserved the data, you now must collect it. Collection can be left to a professional e-discovery provider or your client may engage in self-collection. Before you allow your client to self-collect, think about defensibility issues and potential arguments from opposing counsel about whether your client provided all relevant information in its original and unaltered state.
The importance of preservation
At this point, besides the instructions from the court in Zubulake, do not forget that at the core of the duty to preserve are your ethical duties. Remember, the ABA Model Rules of Professional Conduct require:
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Recently, the ABA made a timely amendment to its comment to Rule 1.1:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…
Without much fanfare, the ABA’s amendment acknowledges the way attorneys must practice law today. Attorneys can no longer ignore technology. As demonstrated throughout your duty to preserve, you must have a working knowledge of not only your client’s technology so that you can identify and preserve relevant evidence, but you should also know what technology is available to you and your client to assist the preservation and collection.
Remember there are consequences to sloppy behavior — sanctions, adverse inference instructions, or dismissal of claims. Further, “head-in-the-sand” attitudes toward e-discovery best practices may also result in ethical violations. We have not seen malpractice cases from negligent e-discovery practices…yet. However, if you communicate with your client, monitor the litigation hold process, and act reasonably and ethically while conducting preservation activities, you should successfully avoid ethical traps or threats of spoliation.