A glimpse of news articles and discussions flags that we are no longer a one-man-island. Everything that happens, is either recorded in an email, text, or picture for instance. Even if you delete these files, your computer still retains a copy or part of the copy of the deleted file. In the realm of 2 terrabyte hard drives, the chances that these deleted documents are still in your computer are pretty high. It is no surprise that in litigation we want to know what these documents say, show, and prove. Take for instance City of Ontario, Cal. v. Quon, 560 U.S. ___ (2010), where the US Supreme Court debated whether a police officer had a reasonable expectation to privacy to texts he sent using his cell phone, which was provided by the Police Department. Likewise, think of the situation where a worker is fired for lying – where the worker represented he was at work, and the GPS on his phone, which was provided by the employer, placed him elsewhere. In short, electronic discovery matters. People don’t often think about their emails or texts in the same way as writing a letter in letterhead. Emails and texts, or voicemails, are short, made quickly, and often have invaluable information – including metadata, which allows the parties to tell when a document was created, deleted, modified, and see prior versions.
Due to the importance of discovery, courts take it very seriously. Especially the duty to preserve documents. Ever since Zubulake v. UBS Warbug, LLC, the threat of sanctions paid by a party has loomed the realm of discovery. Zubulake and its predecessors have brought into focus the question of when do you retain documents, how do you properly retain documents, and to what extent you are bound to preserve these documents.
What follows is a quick guide to starting that conversation with your client when the duty to preserve arises.
- Familiarize with your client’s computer systems (and IT personnel)
- Identify key individuals
- Find out about retention policies for paper and computer systems
- Find out if cloud computing is an issue
- Find out what storage media are relevant
- Find out what backup and archives are relevant
- Send a litigation hold letter to the key individuals alerting them of their duty to preserve
In other words, you want to identify what needs to be searched. For example, storage media that might be involved include work computers, home computers, laptops, netbooks, workstations, pagers, PDAs, Blackberries, iPhones, iPod, iPad, tablets, pen drives, thumb drives, flash drives, mp3 players, cameras, voicemail, cell phones (SMS texts and MMS texts, or video, pictures, calendar), game devices, printers, fax machines, scanners, and copiers.
You also want to prevent the documents from being deleted/destroyed. Does your client destroy documents (either paper or electronic) every year? Every 5 years? Does the email system automatically delete all emails older than 30 days? How often is information backed up? How often are backup tapes erased?
You also want to identify where the relevant documents will be. For example, who might have these documents? Identifying the key individuals will help preserve the documents. It would make sense to institute a litigation hold on X department involved in the lawsuit, but not Y department. Are some of these documents probably on backup tapes? Is there a reason to believe that documents were erased and you would need the backup tapes?
Likewise, you want to identify where the documents and their copies are stored. Generally, when you send an email, it is stored in multiple locations. First, the sender’s outbox. Second, the server. Third, the cloud computing server that gives access online to email. Fourth, the receiver’s inbox. Fifth, anyone copied in the email. Sixth, a third party vendor may be also keeping a copy. Seventh, you may also store a copy in your phone. This is why it is important to know what type of network and providers your client is using. It will help to know if documents are being stored in the cloud, network, third-party vendors, and users’ work and personal devices/computers/phones. Also think about the question whether you have to put the third-party on notice of the litigation hold and ask them to preserve documents.
Finally, it is important to advise your client not to self-select information. The client should read your litigation hold letter broadly and preserve all documents that may apply. It is then your duty to narrow down by reviewing these documents for responsiveness, privilege, and the like.