Preservation of electronically stored information (ESI) is an extremely important part of eDiscovery, and involves issuing appropriate legal holds to prevent destruction of potential evidence and material relevant to a case. It also protects lawyers, law firms, and clients against claims of impropriety and negligence. Discovery guidelines, as outlined in Rule 37 of the Federal Rules of Civil Procedure, make it very clear that both sides of legal counsel have a duty to preserve all ESI that could provide evidentiary value and ensure its integrity.
That doesn’t always happen, however. Whether due to negligence or intentional obstruction, relevant information, files and metadata can become destroyed or "stepped on" before or even during the discovery process. Such instances are known as digital spoliation. It is critical that law firms make it a priority to prevent digital spoliation in all of its forms.
Let’s dig into what precisely digital spoliation entails, and how you can prevent it.
What Does Digital Spoliation Cover?
Digital spoliation is often associated with the destruction of files and data that could be potentially relevant and used against someone in a legal matter. One of the most famous examples comes from the 1980s, when Lt. Col. Oliver North intentionally deleted emails relating to the Iran-Contra affair. This particular scandal would also fall under the definition of willful spoliation.
Successfully lodging a complaint of digital spoliation doesn’t require malicious intent. The client or legal counsel could accidentally destroy data that could be against them and help prove the other side’s case. That would still constitute spoliation under the legal definition and would be considered a federal crime.
It’s also important to recognize that risk of sanctions could involve more than just deleted data. ESI that is altered in any way, withheld from the opposing counsel, or otherwise hidden could result in sanctions such as "failure to produce".
Why Is Spoliation So Important?
Failure to preserve ESI can cause enormous problems for law firms and their clients. The fallout from digital spoliation could run the gamut from fines and civil penalties to felony charges. The most punitive penalties are reserved for more extreme cases of willful obstruction, but all forms of digital spoliation can be harmful to a lawyer’s standing within a trial.
Courts may rule that acts of spoliation, including both intentional and incidental events, can be countered by submissions of adverse inference. This essentially means the court would assume any information that was destroyed, altered, or withheld was damaging to that party’s case.
The American Bar Association cited FTC v. Dluca, et al. as an example of a court imposing sanctions for spoliation. In that case, the defendant purged a massive number of emails from his account. The court ruled that the Federal Trade Commission could introduce rebuttal adverse inference as evidence that those emails would have directly supported its allegations of criminal behavior.
Even when there is no legal fallout from digital spoliation, a lawyer’s case could quickly fall apart when eDiscovery preservation and legal hold best practices are not followed.
How Can Digital Spoliation Be Prevented?
The best way to avoid any issues with spoliation, digital or otherwise, is to have a comprehensive strategy for managing litigation holds. You’re less likely to make a mistake or overlook a file during eDiscovery if you have a reliable system in place.
Legal counsel should also stress to clients the importance of preserving all potentially relevant data in its original form. Deleting or altering files or documents, even unintentionally, could be considered destruction of evidence and result in sanctions or worse. For example: do not open client data in your native outlook account. This could result in altering metadata that is crucial to understand the responsiveness of each document.
To make sure all of your bases are covered, it’s a good idea to have eDiscovery software that takes all of the guesswork out of data collection, preservation, and production. You can mitigate potential risks and take headache out of the discovery process.
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