As most litigators know well by now, courts are stiffening obligations and corresponding penalties on parties (and their counsel, by extension) associated with preserving documents, with a particular focus on preservation of electronically stored information (ESI). Ostensibly, these strictures are in an effort to address the increasingly complex and changing ways in which people and organizations communicate and maintain information in their daily lives.
The general rule is well settled: parties are duty bound to take active measures to preserve relevant records once litigation is reasonably anticipated. Consideration of what this preservation duty could entail, depending on the underlying dispute, type and subject matter of the information, and the data systems involved, can be daunting by itself. But, the myriad of issues are often more challenging for many traditional small-firm clients who may not be savvy in this area. For example, the costs and effort devoted to this topic sound—and often actually are—enormous. Questions may naturally arise about whether the client will faithfully honor its preservation duties and, if not, the corresponding impact on the merits of the case (in which the attorney has invested at least a portion of his or her short-term financial future). These are just a couple of the many practical client/case management issues and challenges that can be confronted in the small-firm setting arising from the duty to preserve potentially relevant information and the exposure to sanctions for failure to do so.
Navigating these often turbulent waters can prove manageable and less taxing for the client, attorney, and underlying case if a sensible, pragmatic approach is instituted from the inception of the client engagement. This should begin with an initial document-preservation letter to the client discussing parties' obligations under the governing civil rules to ensure preservation of relevant documents, which include ESI. See, e.g., Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 466 (S.D.N.Y. 2010) (abrogated on other grounds by Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135 (2d Cir. 2012); Surowiec v. Capitol Title Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011); See also Fed. R. Civ. P. 34(a) (permitting discovery of "documents or electronically stored information"). Below are a few very simple suggestions that may help successfully broach and accomplish a client's document-preservation duties, with a particular eye toward the potentially unwary small-firm client:
A Heads-Up. Before sending the initial preservation letter, call the client or client representative, mention that the letter will be arriving soon, and explain that it is a routine but important part of every new case in the firm. Verbal context and assurance from counsel is an important first step in this aspect of the attorney-client relationship and will help avoid overwhelming the client.
- Plain Language. In the subsequent letter, use clear, concise, and simplified language to more comprehensively address the nature of the client's document- preservation duties, their underlying rationale and importance, and an overview on how to comply with those duties. While words and concepts like "ESI," "spoliation," "adverse inference," and "sanctions" are commonplace litigator speak, they may be very foreign to your client and risk being overlooked or ignored as unimportant/unintelligible legal jargon. Consider the best way to effectively communicate the core principles so the client understands them and will be best poised to honor them.
- The Two-Way Street. Explain to your client that its adversary in the dispute has the same document-preservation obligations and corresponding penalties for failure to comply. Given the increasing prominence and expense that ESI preservation and collection brings to today's litigation, at some point expect to confront frustration from your client about, for example, the consumption of client manpower, attorneys' fees and costs, outside vendor bills, etc. associated with these information-preservation and collection protocols. Clients tend to feel unfairly isolated in dealing with the burdens (whether characterized as time, expense, distraction, etc.) of document management, particularly when this issue re-emerges during the already pressurized setting of full-blown written discovery as you seek to confirm that all relevant client materials have been properly preserved and retrieved. Emphasizing from the outset of the process that your client is not alone in wading through these preservation duties, and that the client's attorney will be there to closely assist, may help motivate (or minimize the sting of) proper compliance.
- No Overdone Detail. Avoid the temptation to use a "laundry list"-style document- preservation letter that attempts to explain every detailed nuance of the document identification, preservation, and collection process. For example, the categories of systems, devices, programs and other media that are potential repositories for discoverable information subject to preservation is extensive and only growing in today's data-driven world. The more detailed and burdensome the initial document-preservation letter is (or, more appropriately, appears to your client), the more daunting the exercise appears and perhaps less likely the client will be to scrutinize it to understand the duties and how to accomplish them. Of course, if this occurs, the purpose of the letter is frustrated. Instead, consider generally outlining the most vital aspects of a party's document-preservation duties (e.g., all parties have a duty to preserve and not destroy potentially relevant information), key immediate action items (e.g., disabling any auto-delete features for ESI, instructing employees to implement a "litigation hold") and common sources of potentially relevant information (e.g., email accounts, iPhones, Excel files) to provide the client with a clear, conceptual understanding of the framework and issues.
- Emphasize Counsel's Role. As you close your document-preservation letter, stress that you will promptly follow up, coordinate and stay in close touch with the client to work together to fully vet the range of issues and considerations that impact proper compliance and, ultimately, the integrity of the case. These include, for example, what the duty to preserve potentially relevant information means and entails, the modes in which the client (including percipient employees) creates/transmits/maintains/deletes electronic communications and documents, the architecture of the client's data-management system, the pros/cons of reliance on outside professional assistance, cost management in preserving/collecting the data, evidentiary issues, and what the potential penalties for noncompliance practically mean for the client's case. As courts more than ever instruct that document preservation is an iterative, collaborative process in which counsel must work closely with the client to oversee compliance, long gone is any notion that a solitary letter at the outset of the engagement discussing document preservation issues will suffice. Again, making clear from the beginning and throughout the process that counsel will be closely involved in guiding and distilling this often arduous process will help assure the unwary client and improve efficiency, accountability, and overall success
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