Duty to Preserve Documents in Litigation

Parties have a duty to persevere evidence, including electronically stored information. Daynight, LLC v. Mobilight, Inc., 2011 UT App 28, ¶ 3, 248 P.3d 1010, 1012 (finding the district court did not abuse its discretion in granting a default judgement where evidence was destroyed). Once a party reasonably anticipates litigation, documents relevant or which may be relevant should not be destroyed. A “litigation hold” should be put in place to preserve evidence and prevent potential sanctions. Courts have found that beyond the litigation hold, counsel for parties “must oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents.” Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (outlining steps that counsel must take to preserve documents (1) issue a litigation hold; (2) communicate with key players instructing them to preserve documents; (3) instruct all employees to produce electronic copies of their relevant active files; and (4) make sure that backups are identified and safely stored.)

Given the number of electronic communications, having a document management plan which regularly deletes files, including email, voicemail, and text messages is common. Deleting text messages and voicemails, is not only common but often necessary given the memory limitations on mobile devices. When litigation is reasonably pending, parties must take steps to locate, store, and preserve documents. It is possible that files will need to be preserved from mobile devices so that they can be deleted off of the device to allow the user to continue to use the device. Deleting files should only be done once a backup file has been made, and only when absolutely necessary.

Sample Document Retention Policy (EXAMPLE ONLY)

In order to adequately protect and preserve the records of COMPANY, the following policies and procedures govern the retention and deletion of documents:

1. This policy applies to all document, files, and communications, including but not limited to emails, text messages, voicemail, cloud based files, backups and other electronic files (hereinafter “Documents”).
2. Documents shall be routinely destroyed in accordance with the attached schedule, unless notice has been provided that a litigation hold is in place.
3. Litigation Hold. In the event of a litigation hold, Documents shall not be deleted without prior approval by _______.

Practice Pointers

1. Develop a document retention plan, including how documents will be preserved when litigation is reasonably anticipated.
2. Make sure that the key players in the litigation are aware that they have a duty to preserve documents.
3. Take reasonable efforts to locate, identify, and safeguard documents, files, and backups.
4. It may be necessary to have multiple backups.
5. Counsel should send out a spoliation letter to clients outlining the full range of documents and files that need to be preserved, email, voicemail, text messages, and social media data.
6. When in doubt, keep it.