Attorney Robert D. Brown, Jr. of the Gibbons law firm has a great write-up about a recent dismissal of an employee’s discrimination claim. The dismissal was granted after the plaintiff destroyed certain computer related evidence. See How a Case Can Crash and Burn: Why a Litigant Should Not Set Afire a Computer After It Crashes (Preservation 101).
The case, Evans v. Mobile County Health Department (PDF), (S.D. Ala. Jan. 24, 2012), involved a reverse discrimination and retaliation lawsuit against the former employer Mobile County Health Department. The spoliation sanctions arose out of the former employee’s intentional burning of a 13 year old personal computer that was alleged to have contained discoverable electronically stored information (ESI).
Mr. Brown’s post provides a thorough discussion of the facts and procedural background of this case, which I won’t duplicate.
Instead, I’d like to point out that this case also highlights two important issues for attorneys and provide e-discovery recommendations in-house counsel and plaintiff and defense attorneys.
First, this case illustrates the important role that attorneys must play in assisting their clients to meet their judicial and ethical obligations to preserve digital information.
This point is reinforced by what the Court highlighted in ordering spoliation sanctions against the plaintiff. Specifically, the court noted that the plaintiff employee testified as follows:
Finally, although plaintiff testified that she was unaware of a court obligation not to destroy evidence and that she did not intentionally destroy her computer to cover-up unfavorable evidence, she also admitted that her attorney told her to preserve all relevant documents regarding her complaints of racial discrimination, which, of course, would include the emails she mentioned during her deposition.
Second, this case also highlights the need for legal counsel to provide meaningful assistance that is documented. In this regard, the court opinion does not offer any further insight beyond the preceding quote in terms of what was explained to the plaintiff about her scope of preservation.
Reading between the lines, I would be comfortable assuming that not much assistance or guidance was actually provided by the attorney as to preserving electronically stored information.
This assumption is also based my experience as an associate attorney listening to clients being generally advised to “make sure to copy all the documents relevant to this lawsuit” for the attorneys to review at some later date. This recommendation evolved to “preserve all relevant documents and don’t forget about emails.”
Often, however, there was no discussion about what relevance means in the legal sense of the word or recommendations for actually preserving electronically stored information. In short, clients were left to figure the details out for themselves. But especially when it comes to e-discovery preservation, “the devil is in the details.” And these details continue to be overlooked up to the present – even by sophisticated law firms involved in employment discrimination claims.
Best Practices for Initial Preservation of Electronically Stored Information
The following are a few recommendations for in-house counsel and outside attorneys that should be considered when it comes to meeting ethical and legal obligations for the preservation of computer related evidence:
- Discuss the client’s preservation obligation at the earliest opportunity. For example, I’ve incorporated a preservation discussion into my standard retention agreement and will often raise the issue at the first client meeting.
- After discussing the preservation obligation, document the obligation. This documentation should be viewed as both a risk management exercise on the attorney’s part (or for cynics who don’t prefer euphemisms, a CYA) and also an attempt to genuinely assist the client in meeting their ethical obligations. For example, in addition to discussing preservation in the retention agreement, I provide a full discussion of what must be preserved and general steps to take for preserving emails and the like, including examples of categories of data to consider for preservation.
- For business clients, it may make sense to meet directly with IT professionals as soon as possible because they are likely to know the digital terrain. With this knowledge, an efficient and defensible preservation plan can take shape.
- Further, it is important to avoid lawyer jargon when discussing preservation obligations, especially with individuals who may not be accustomed to the litigation process. For example, “relevance” is a term that lawyers commonly throw around. But this may not mean the same thing to a non-lawyer who is not well-versed in the elements of the claims for defenses.
These are just a few considerations that attorneys and their clients need to consider when it comes to preserving digital information that may be involved in litigation. For more recommendations on when a litigation hold should be implemented, contact Jason Shinn.