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Preserving Electronic Evidence
March 2, 2012
The advent of technology in the workplace has created considerable convenience and efficiencies. It also has caused an explosion of electronic files and emails. For a company facing litigation, there are legal guidelines that must be followed to ensure that potential evidence, including electronic files and email messages, are not destroyed.
Some New York courts recently adopted the federal standard that essentially holds a company responsible for preserving records if it reasonably anticipates litigation. Companies must suspend routine electronic destruction policies and implement a so-called litigation hold to ensure that any relevant documents that may be potential evidence are not destroyed.
For some companies, this means taking proactive steps to halt any process that may purge documents from electronic systems, including email systems, on a routine basis.
The litigation hold also must direct appropriate employees to preserve relevant records, electronic or otherwise, and create a mechanism so that the files may be searched in the future. Critically, companies should not give absolute discretion to these employees to determine what is relevant. Rather, the company’s owners or management must ensure that the employees have proper supervision and guidance.
Clearly, saving and storing considerable amounts of documentation may be burdensome for companies, particularly if the standard for what must be saved is unclear and the duration of the litigation is lengthy. The New York State Bar Association has formed a committee to examine these issues and to make recommendations for rules that address the preservation of documents needed in litigation. Stay tuned for developing guidance.