Thursday, July 21, 2022

We need to talk about litigation holds and spoliation of evidence

The situation playing out in real time between Congress and the Secret Service over text messages related to the Jan. 6th insurrection is quite the teachable moment on litigation holds and spoliation of evidence.

On Jan. 16, 2021, Congress sent the Department of Homeland Security (which oversees the Secret Service) a broad preservation and production request for documents related to Jan. 6, which included communications "received, prepared or sent" between Jan. 5 and Jan 7. 

Following the Jan. 16 request, the Secret Service explained to employees that it was up to them to preserve records from their phones and provided a step-by-step guide to preserve mobile phone content, including text messages, prior to a phone migration that occurred on Jan. 27. That migration, however, appears to have caused a widespread destruction of data, as the Secret Service has only been able to produce to the Jan. 6 Committee one text message from the critical three-day window.

What went wrong? 

A lot, apparently.

A litigant (real, threatened, or potential) has an affirmative obligation to stop the destruction of potentially relevant or discoverable documents and information. You accomplish this by employing litigation holds as soon as a claim or potential claim is reasonably clear. Otherwise, relevant documents might be destroyed, leading to sanctions such as adverse inferences, dismissal of claims, or default judgments. The same obligation holds true for witnesses placed on notice of their obligations to preserve data and other potentially relevant information.

The following is a list of 11 practical tips for implementing a meaningful litigation hold during active or pending litigation:
  1. Describe the pending claim.

  2. Identify the recipient of the hold letter as someone who may have personal knowledge regarding the matter, or who may be in possession of or have access to information or documents potentially relevant to the matter.

  3. Order the suspension of any deletion, overwriting, or any other destruction of electronic information relevant to the matter that is under the recipient's control. This task will be much more daunting for an IT manager than an individual employee's workstation.

  4. Broadly define the scope of covered information to include all documents, records, or data of every kind residing or recorded (intentionally or unintentionally) in any medium or location other than within a person's memory: paper, photographs, maps, diagrams, applications, databases, emails, intranet, instant messages, social media, blogs, voicemails, metadata, and any other electronic means of communication that are created, stored or received on the company's computers or network systems or any other devices or systems capable of storing electronic information (i.e., phones, applications, storage devices, cloud storage).

  5. Instruct that the recipient search all information for anything relevant or potentially relevant to the claim. Emails and other electronic information should be segregated in a PC or Outlook folder, and all paper documents in a hard file.

  6. If there is any risk whatsoever of data disappearing, or there exists forensic importance to preserving and not altering the underlying metadata, engage a forensic IT professional to create a forensic image of the device(s).

  7. Hoarding is not a bad thing. Tell recipients to err on the side of over-saving.

  8. Designate one company employee as the point person for any questions about the litigation hold and employees' duties to preserve information and documents.

  9. Alert recipients to the risk to the company and its employees for failing to heed the litigation hold request.

  10. Ensure that the recipient signs a verification signifying the receipt of the litigation hold.

  11. Periodically recirculate the litigation hold to ensure continuing compliance.

If this scenario played out in one of my cases, and my client "lost" key evidence related to the case, I'd be having a stroke over the potential implications. Failing to implement or abide by a litigation hold is a quick way to focus your case away from the law and the facts and on to discovery issues (which is never a good thing). If your lawyer is not having a conversation with you about how to preserve evidence, it's time to find a new lawyer.