3 Tips for Counsel to Ensure Preservation of Evidence and Avoid Sanctions

When a litigation hold notice is sent out, who ultimately bears the burden to preserve? The company, its counsel, or the individual?

In a recent federal case, an individual was held personally and criminally responsible for deleting text messages. He may receive time in prison despite the fact that the company had instructed employees to retain ESI. Was that individual spoken to directly by counsel about these text messages? Did the individual understand that text messages were potential evidence? Was the intent of the individual to hide evidence?

The risk of sanctions or jail exists in many cases, not just in big, high-profile matters. It is not sufficient simply to issue a litigation hold.

3 Ways for Counsel to Ensure Preservation of Evidence and Avoid Sanctions:

  1. If you are counsel or in a senior position of responsibility, it is not sufficient simply to issue a litigation hold and hope that everyone understands what it is, to what it applies, how to do it, and hope that somehow it preserves evidence. This is true especially if a custodian doesn’t understand what constitutes evidence.
  2. If you are outside counsel or Corporate Counsel and have substantial litigation risks, then seriously consider issuing some edicts about limits to using text messages on mobile devices for work-related matters. While this may not be possible in every business, it is for most. By asking employees to stop this practice you not only save the company time and money when that data needs to be preserved and produced, but you may also be saving someone from going to jail.
  3. Know what mobile devices are in use inside your organization or at your clients. BlackBerrys have a default auto-delete function for text messages over 30 days, but this setting can be changed. iPhones and Android devices do not have this setting. Additionally, there are hundreds of apps beyond the standard messaging apps installed by default on these devices. Make sure you are asking about Skype, Instagram, Twitter, WhatsApp and others.

How does your company ensure proper preservation of evidence?

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