Preserving Electronic Documents
Spoliation is the destruction, significant alteration or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. Spoliation can occur as the result of actions by parties or by non-parties. It can be inadvertent or intentional. It can be the product of absolute good faith, the result of negligence or bad faith.
Because electronically stored information is routinely deleted or altered, affirmative steps are often required to preserve it. Simply turning on a personal computer can destroy files or cause electronically stored information to be overwritten.
While courts cannot expect parties to meet a standard of perfection, courts expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is pending or is reasonably anticipated, and that such records are collected, reviewed and produced to the opposing party. A failure to preserve records and to search appropriately for those records may result in spoliation of evidence.
Spoliation of electronically stored information can have very severe consequences and the act of spoliation is easier to establish in the case of electronically stored information than it is in the case of paper documents. Courts are crystal clear that they take the preservation of electronically stored information very seriously. When litigation is pending or is reasonably anticipated, parties must anticipate and undertake appropriate document preservation. The duty to preserve involves two related inquiries:
(1) When does the duty to preserve arise?
(2) What evidence must be preserved?
If you are involved in litigation or facing a potential litigation, it is highly recommended that you consult your attorney so that you can prepare a plan to satisfy the obligation to preserve potentially relevant, electronically stored documents.