|February 26, 2014|
Previously published on February 21, 2014
Rule 37(e) of the Federal Rules of Civil Procedure advises courts not to impose sanctions on a party for failing to provide (in discovery) electronically stored information (ESI) that was lost as a result of the routine, good-faith operation of an electronic information system. This "safe harbor" provision allows companies and individuals to delete their electronic information on a routine basis, but this provision only applies when a duty to preserve the information has not been triggered. In other words, if there is a duty to preserve the ESI, then you must stop any routine deletion procedures.
Consequently, if a duty to preserve has been triggered, then you cannot delete your e-mails or any other relevant electronic (or hard copy) files. So, when is the ‘duty to preserve' triggered?
The duty to preserve arises as soon as there is an "anticipation of litigation." Zubulake v. UBS Warburg, LLC, 220 FRD 212, (S.D.N.Y. 2003) ("Zubulake IV"). In other words, "when a party reasonably should know that the evidence may be relevant to anticipated litigation." Silvestri v. GMC, 271 F.3d 583 (4th Cir. 2001).
The following are some occasions when the duty to preserve has definitely been triggered:
- You have received a letter from a lawyer, a government investigator, or another party advising you that you have information that is relevant to possible claims or litigation.
- You have received a litigation hold memorandum from your counsel or someone within an organization or company with which you are affiliated.
- You expect that you or your company may want to file a claim or lawsuit, and you have information that will be relevant to the claim or litigation.
- You learn of an incident that will likely result in litigation and you have information relevant to that incident.
When any of those scenarios occur, then you should take active steps to insure that all reasonably accessible and relevant ESI (and hard copy documents) are protected and preserved. The following are some simple, but important steps to be sure that you properly comply with a duty to preserve that has been triggered:
- Identify potential sources of relevant information and evidence.
- Develop a list of custodians of the ESI so that you can communicate that all of their relevant ESI should be preserved.
- Meet with your employees, colleagues, and IT department to learn where all of the applicable relevant ESI is stored.
- Determine the relevant time period for the ESI that you need to preserve.
- Prepare a litigation hold memorandum, which might include the following: (1) a description of the hold's purpose and the duty to preserve; (2) a warning of the consequences for any failures to comply with the hold; (3) a description of the ESI or hard copy documents that must be preserved, include the custodians identified, the locations of the ESI, and the relevant time periods; and (4) a directive that all applicable document destruction policies be halted.
- Distribute, enforce and monitor the litigation hold memorandum.
- Obtain signatures from the recipients of the hold confirming that they received it.
- Update the litigation hold memorandum if the scope of the relevant ESI changes.
- Release the litigation hold memorandum when the litigation is concluded or the claim has been resolved.