So, You Think You Are Going to Be Sued? – Don’t Throw Anything Out
By: Jarrad Wright
As all business owners know, litigation can happen at any time and often where you least suspect it. While good planning and policies can reduce the chances of litigation, it is impossible to predict and prevent every possible scenario. What should you do when litigation becomes a real possibility? Besides calling able counsel, one of the first things a lawyer will tell clients to do is to preserve all documents potentially related to the matter. However, in today’s age of cloud computing, disposable devices, and social media, this can be harder than it sounds.
The duty to preserve documents begins when one reasonably anticipates litigation, and courts have imposed stiff sanctions, ranging from fines to adverse jury instructions, for failing to preserve documents. So, before litigation begins it is important to preserve everything for discovery. This includes paper files, emails, social media accounts, telephones, electronic documents, databases, and servers. While often seen as a business interruption because of the time and cost, preserving documents early on will assist your lawyers in getting ahead of discovery and in many instances becomes the key to preserving valuable communications that could win your case as well as preventing sanctions.
Many larger to middle sized companies have document preservation policies in place, but these policies are often absent in companies that do not have significant litigation experience. Whether or not a written policy exists, it is imperative for a company or individual to quickly determine where potentially relevant documents may be located and how to stop any automated procedures in place that could potentially delete or destroy those documents. Many information technology systems have automatic deletion mechanisms that need to be identified and stopped. Likewise, mundane tasks such as upgrading a smart phone can becoming a liability if the evidence is not properly preserved before getting that new phone. Knowing precisely what needs to be preserved is key and conversations with experienced counsel early in the process will help identify key witnesses and documents. Experienced litigation counsel can locate specialized experts to preserve complicated databases. That said, a business even before hiring counsel can improve its situation by taking issues directives to not delete emails and to preserve all handwritten notes. Remember that when the threat of litigation suddenly arises, taking active steps to put yourself or your business in the best position is necessary. If you’d like to discuss this further, contact Jarrad Wright at Jwright@dimuro.com.
DiMuroGinsberg, P.C. has decades of combined experience in handling document preservation and spoliation cases and is knowledgeable in all aspects of these matters.