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We have to admit, it's very tempting.
You're given notice of an upcoming litigation that's going to involve collecting some emails, word docs, spreadsheets, or other electronically stored information (ESI). But, you've learned your way around the computer over the last twenty years, so this is a piece of cake. You know what you're doing, right?
And - no offense - but not only do you probably not know what you're doing, you are putting your case in severe jeopardy. Courts are cracking down on litigants who have been practicing improper self-collection and instituting ineffective litigation holds. And the crackdowns are getting costly.
Even some of the biggest names in the world - Apple and Samsung - have been called out by the Courts for spoliation for failing to preserve electronic data. Not only is that embarrassing (especially for two of the biggest technology companies in the world) but it's just plain dangerous. During the protracted Apple Inc. v. Samsung Electronics Co. Ltd. litigation, both parties made big preservation mistakes. And judges found that both parties would be hit with adverse inference charges at trial.
From sanctions to preclusion to adverse inference charges, courts are taking litigants' failure to properly preserve electronic data very seriously. Spoliation is becoming the new "it" phrase in ESI collection and preservation cases, with damning results in litigation.
Self-Collection of ESI: Bad voodoo you do.
A do-it-yourself collection of ESI is not only dangerous, but it could be extremely costly to your case. There are a number of potential problems with self-collection of electronic data: 1) employees tasked with self-preservation aren't always familiar with the scope of the facts of the case and often do not understand the legal ramifications (or even just the legal terminology used); 2) already busy employees may not have the time or resources to dedicate to the collection; 3) employees (you know, human beings with feelings), may be motivated to not produce certain information that they think is damaging to them or the company or that they find embarrassing; and 4) the employees may not have the necessary IT knowledge to know all of the areas in which to look, and, even if they do, they likely do not know how to properly collect the information to preserve all the metadata (or, even worse, they jeopardize metadata). Also, there may be additional areas that need to be searched that the self-collectors don't think about - like the ESI for employees who are no longer with the company, older computers that had been swapped out, etc.
There have been a number of cases in recent years where litigants were sanctioned or adverse inference instructions were given because self-collection failed to properly collect electronic evidence. The failings behind those self-collections have ranged from matters where the defendant over-relied on self-collection by employees, failed to follow up on the collection process and on litigation holds (see more below), to instances where key employees changed the content of electronic information that they believed was damaging to their case.
Simply put, self-collection of ESI is a risky path to take. But, luckily, there are people out there who really do know what they are doing. And they are here to help. Not only are there reasonably priced and fully defensible ESI collection tools in the market, but the collection can also be done remotely by certified forensic staff. The cost-benefit comparison between having your ESI defensibly collected by people who know what they are doing and doing it yourself (and hoping the court doesn't check what you're doing) is really a no-brainer. So, why take the risk?
When good holds go bad: the failed Litigation Hold.
Litigation holds for electronic information are becoming increasingly scrutinized by the courts as well. Litigation holds are typically notices sent out to key employees advising them that they need to keep certain information relative to a case.
When done correctly, litigation holds can be a lifesaver for your action by preserving all relevant data for future analysis (by you orby the court). If not done correctly - when the proper information is not preserved or the hold is not followed up on in a reasonable manner to ensure that it is being followed - litigation holds will do nothing to stop the destruction of important electronic information. Hello, spoliation.
Locally, in Tracy v. NVR, Inc., Magistrate Judge Payson analyzed the defendant's litigation hold notices that NVR was to have put in place in response to the litigation. Tracy v. NVR, Inc., 2012 U.S. Dist. LEXIS 44350 (W.D.N.Y. 2012). Plaintiffs claimed that defendant failed to instruct key employees to preserve all relevant documents, resulting in the destruction of electronically stored information. Id. In the Court's Decision and Order, Magistrate Judge Payson pointed to the testimony of various NVR managers; five of the six did not recall ever receiving a litigation hold notice. Id. The only manager who did recall receiving an instruction to preserve documents admitted that he did not search for documents in response to the litigation hold. Id.
If faced with the same scrutiny, how would your litigation hold do?
Now for some good news - there is technology out there that will stand up to the court's scrutiny, and keep you and your clients covered. There are even companies who offer litigation holds for no cost to you - which will ensure that you and your clients sleep a little easier at night.
But, hey, if you think you know more than Apple when it comes to preserving electronic data, go for it. Just don't say we didn't warn you.
Not to be construed as legal advice.
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