Retention of Documentary Evidence in the Internet Age.
Stevan Adelman & Nancy Herby

In this high-tech era, evidence can be published on the Internet or forwarded to another location with the click of a mouse. Likewise, important documents can be wiped off the electronic record. Has your company taken the necessary steps to shield itself from potential criminal convictions and/or sanctions related to destruction of evidence by delineating a clear document retention policy and adhering to it?

When litigation is pending or reasonably foreseeable, companies need to take a number of steps to ensure that discoverable information is not lost, omitted, delayed or destroyed. In the case of electronic data, the federal courts have recently defined the steps necessary to ensure compliance with the preservation obligation.
Key players in the litigation, including all persons likely to have relevant information must be informed of their duty to preserve all relevant information.

First, a company must communicate to its employees that a “litigation hold” is in place with regard to all potentially relevant information. This communication should be periodically repeated to ensure that new employees are aware of it and that the rest of the employees keep it in mind. Second, key players in the litigation, including all persons likely to have relevant information must be informed of their duty to preserve all relevant information and periodically reminded of such duty. The document management habits of each key player should be ascertained in order to ensure that all discoverable information is produced. Third, all back-up tapes must be identified and stored in a safe place.

Additionally, company information retention policies identifying the time and scope of information retention should be established. A list of electronic systems, including a general description of each system and relevant backup policies, should be maintained. These information retention policies should be followed without exception and the individual responsible for each policy should be identified. The responsible person should be familiar with the party’s electronic systems and capabilities in order to explain these systems and answer relevant questions should there be litigation.

Although establishing a comprehensive information retention plan is time-consuming, sanctions for the loss or destruction of relevant information (or, at minimum, delays in acquiring relevant information) can be severe. Penalties imposed by the court range from financial or criminal sanctions to an “adverse inference instruction” in which the jury is told to view all missing evidence in the light most favorable to the adverse party. In any case, the best course for litigants is to plan ahead by creating, maintaining and following a comprehensive information retention plan.

(c) Copyright 2005 Miller, Morton, Caillat & Nevis. All rights reserved.
The information provided here is intended to educate the reader regarding issues of contemporary business interest. It is not intended to constitute legal advice or recommendations for application to any specific legal dispute. You should always confer with your legal counsel about the application of the principals and issues discussed to your own circumstances.