We have all been there, a client calls and informs you they were served with a complaint. They need representation. Legal teams then face the challenge of assuring evidence is identified, collected, reviewed, and produced as early as possible during discovery. Preservation of this data is one of the key factors that impacts the direction of a legal action. Proper identification and protection is of utmost importance. Over the next couple of weeks, Legal Eagle will examine fundamental tips to consider when preserving evidence for a legal case.
TIP 1: Retention vs Preservation
The most important thing to remember is that clients and attorneys are obligated to preserve relevant data under the Rules of Civil Procedure. Preservation is often synonymous with retention, but they are different.
Retention is the storage and “safeguarding” data for compliance and regulatory obligation. Retention is core to records management and information governance.
Preservation on the other hand is directly related to eDiscovery and litigation readiness. If litigation is anticipated, legal teams are obligated to collect, secure, and preserve relevant evidence.
Evidence may take different forms – hard paper, email, databases, websites, communications, mobile data. Attorneys and their staff should meet with their clients to determine what types of evidence impacts the case and determine what should be preserved.
Legal Eagle is ready to assist in developing a plan to help secure relevant information – no matter the type of evidence. Laying out a plan early on will save your client time, money and lessen the burden if not executed with proper knowledge and insight. As an example, text messages may demonstrate defensible evidence in the case – securing text messages as soon as possible to avoid deletion or destruction is good preservation.
TIP 2: Interview Witnesses or Custodians
While the client may have most of the information concerning a legal case, witnesses may also be called custodians. A custodian is a person possessing evidence or knowledge of the facts and circumstances of the legal case or investigation. In most instances when a new case is established, legal teams begin the process of understanding the facts and circumstances of locating evidence. Interviewing potential custodians brings to light types of evidence that may require preserving.
A Custodian Questionnaire is often a good way to establish information about custodians and identify those more knowledgeable of the circumstances surrounding the litigation. A questionnaire should include:
specific office location,
employee identification number,
desk phone or mobile phone,
types of electronic files created or maintained,
where the files are maintained,
how those files are stored,
are the files managed by a record retention program or compliance system,
were mobile devices used that may contain evidence,
types of electronic systems the witness utilizes to perform his or her job,
existence of archived data,
other forms of electronic systems or evidence impacting the legal case.
TIP 3: Concise Communications
Understanding the importance of benefits vs the burdens when preserving information is critical. The gray area of casting a net too wide may increase costs and review during the discovery phase. Discussing the parameters early on with legal counsel is vital.
Establishing clear and concise messaging to custodians to safeguard evidence is an important next step. Creating a legal hold memorandum early on should include types of information that is relevant to the court case or investigation. Utilizing custodian questionnaires will help establish persons receiving a legal hold and establishing the more important custodians having greater knowledge and evidence.
A legal hold may be sent in the form of a memorandum, email notification or other written form. A legal hold can be sent before a custodian questionnaire is established, to assure evidence is not destroyed early on or too much evidence is preserved.
Acknowledging the importance of evidence in the case to potential witnesses is necessary to protect evidence. Counsel may want to send a preservation letter to the opposing parties or counsel to notify everyone of the importance of evidence, especially electronically stored information (ESI), or types of information the party may intend to seek during discovery.
Electronic data may be wiped or destroyed without the legal teams’ knowledge as a routine course of business. Instituting a formal notice of preservation may avoid data being destroyed and strengthens the importance of protecting ongoing ESI that may be evidence in the legal case. If third-parties are relied upon for services and maintain or manage evidence, it is important to evaluate and determine the next steps for securing data held by a third-party.
TIP 4: Involve IT
Information technology employees will be a primary factor is preserving evidence in electronic format. As soon as possible, begin communicating with IT to clarify the types of information that may be impacted. IT manages electronic information and as such is crucial for the business unit as a whole to better understand compliance for legal matters and investigations.
Having ongoing communications regarding upcoming hardware replacement, or archiving changes brings everyone responsible to the same table to rationally discuss 3, 6, or 12 months of IT planning and how it may impact the required preservation of evidence. Legal holds should be copied to IT employees so that both legal and IT are working together to assure legal compliance is maintained.
TIP 5: Electronic Data
Take a moment to consider the types of electronic information you have within your reach every day. From the moment a person leaps out of bed, the interaction between ESI begins. From phone calls, laptops, email, texts, website, word processing files, presentations, saved documents, and so on – all this information and electronic files may be vital to the legal case. Mapping and creating a diagram of potential sources of electronic information is one of the greatest assets when identifying preservation needs.
Our mobile society allows employees (and potential witnesses) to work in a virtually seamless world. The virtual world is based on electronic systems generating continual ESI that potentially may be important. Understanding the widespread volume of potential evidence is crucial in assuring compliance is met. While not every case may involve voluminous data, knowing as early as possible leverages a better outcome.
Electronic data is organic and continues to evolve daily. Files are saved, opened and versions overwritten. Waiving the obligations will certainly impede discovery in the litigation workflow. Securing the electronic data in a repeatable and defensible method should be adhered to.
For more information on eDiscovery and the preservation of data for your court case, please contact Tim Thames at firstname.lastname@example.org or Adam Shirley at email@example.com.