In our litigious society, organizations need to be mindful of what is driving the bottom line, but equally aware of what risks exists that could threaten the bottom line. The potential for a “should have known” preservation trigger has grown with the explosive expansion of social media channels—while Slack and Jira are just adding to the piles paper and terabytes of e-mail.
With more information to keep tabs on than ever before, do you really know where all of your responsive records are located? Could you produce them in a timely fashion in the face of litigation? Here are a couple prime examples of how preservation impacted the legal landscape.
A Brief History of Landmark Preservation Cases
The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation, or when a party should have known that the evidence may be relevant to future litigation.”
Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir.2001) (“The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” ) (citing Kronisch, 150 F.3d at 126).
In Silvestri v. General Motors Corp., we are reminded of the importance of preserving evidence—even when that evidence weighs more than two tons. In the Plaintiff’s case, the vehicle that was Mr. Silvestri was driving at the time of his crash was not preserved and its availability was not communicated with the Defendant. Because of this, the Plaintiff’s claim was dismissed by the district court, a decision that was later affirmed by an appellate court.
Zubulake v. UBS Warburg LLC
Another important landmark case in the arena of evidence preservation is Zubulake v. UBS Warburg LLC – 220 F.R.D. 212 (S.D.N.Y. 2003). The Plaintiff, Laura Zubulake, sued her former employer alleging failure to promote, gender discrimination and retaliation. The Defendant, UBS Warburg, had failed to preserve backup tapes and deleted emails that Zubulake contested were relevant to potential litigation.
When Zubulake was able to produce these, she was able to satisfy the burden of the spoliation test—even though the court determined that the lost tapes didn’t actually contain any relevant information to her case. The sheer fact that UBS Warburg had not preserved them in the wake of litigation that it could have reasonably anticipated, the court deemed the employer as being negligent and “possibly reckless” in their preservation practices.
Another important factor in this case was the Defendant’s assertion that the cost of producing the archived e-mails would be too expensive–as much as $175,000 according to UBS. But Zubulake had already produced substantial evidence, which came in the form of an e-mail suggesting that she be terminated after she filed her initial EEOC suit.
Within the email, UBS decision makers argued that she should be fired swiftly so that she would not be eligible for year-end bonuses from the company. The email Zubulake produced was the smoking gun the Court was looking for, as they eventually sided with Zubulake, creating important precedent for organizations who maintain electronic data.
The Court ordered UBS Warburg to locate and produce ALL responsive e-mails that existed on optical discs and/or active servers at its own expense. Additionally, they had to produce responsive e-mails from ANY five backup tapes of Zubulake’s choice. After this process was complete, the Court would shift the appropriate cost to the Defendant.
When the gavel sounded, UBS Warburg was on the hook for Zubulake’s damages, the cost of producing relevant evidence and other expenses such as paying for the cost of deposing individuals with information pertinent to the case. Considering her salary was approximately $500,000, Zubulake estimated at the time that she could be entitled to as much as $13,000,000.
Identifying the trigger for when a party should have reasonably anticipated litigation is becoming increasingly challenging, as it varies based on the facts and circumstances. Considerations when determining whether a party might be charged with reasonably anticipating litigation include:
- A plaintiff’s own contemplation of litigation.
- A defendant’s own contemplation of litigation.
- Receipt of written or verbal notice of potential claims against a party, either from counsel or a potential adversary
The technical challenges to identifying potential litigation triggers have been addressed with intelligent capture of poor handwriting in paper mail, robotic process automation to parse e-mail and e-mail attachments as they come in, and constant searching of social media sites for trigger words and phrases. Voice recognition technology that creates a text output is also widely available.
The information governance policy challenges remain. If a company doesn’t have these policy and related procedures in place, mail or email containing a “notice” may be delivered to an individual who may be on vacation, someone who has since left the company or an individual on extended leave. In these cases, the notice usually sits for weeks or months, heightening the risk for consequences from litigation.
Scanning it at the time it is received and looking for trigger phrases like “I’m going to sue you” or “I’m filing a claim” can send the piece of mail to legal counsel so it can be reviewed and managed. RPA tools can be searching through social media and/or email for trigger phrases and again alert legal counsel, especially in the cases where issues or situations are trending. Further, the RPA tool can then search across repositories and alert the responsible attorney of the existence of potentially responsive documents.
If your organization wants to implement a solution that can pinpoint potentially harmful litigation and properly preserve it, contact the team at Western Integrated Systems today. Our experts will walk you through all of the options available on the market today and tailor a solution that fits your particular needs.