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Creating a Defensible Evidence Preservation/Collection Plan

By Adam Rubinger

Most companies have fairly comprehensive document retention/destruction policies for both paper and electronic information. Often, these policies have been crafted to meet a disparate range of state, local, federal and regulatory laws (HIPPA, SEC, Sarbanes-Oxley, etc.) that impact document retention schedules. For large companies that face regular, complex litigation (ie, “serial litigants”), the greatest challenge is when the company has to suspend these policies in response to litigation. A company's obligation to preserve data does not necessarily begin at the exact moment a complaint is filed. Rather, recent case law, local statutes, and American Bar Association (ABA) guidelines prescribe that a company's obligation to preserve data begins at the time litigation becomes likely.

For example, the infamous Zubulake cases discuss a counsel's preservation obligation:

  • “Counsel must oversee compliance with the litigation hold, monitoring the party's efforts to retain and produce the relevant documents.”
  • “[I]t is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information.”

In addition, courts have been establishing local laws around digital evidence, particularly as it relates to a party's duty to “investigate and disclose”:

“Prior to a Fed. R. Civ. P. 26(f) conference, counsel shall review with the client the client's information management systems including computer-based and other digital systems, in order to understand how information is stored and how it can be retrieved. To determine what must be disclosed pursuant to Fed. R. Civ. P. 26(a)(1), counsel shall further review with the client the client's information files, including currently maintained computer files as well as historical, archival, back-up, and legacy computer files ….”

District of New Jersey, Local Rule 26.1(d)(1)

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