Alitigant never wants to be on the wrong side of a Rule 37 motion for discovery sanctions. Rule 37 empowers courts to issue various sanctions ranging from financial penalties to judgment against the offending party. But it can be difficult to navigate the evolving requirements for preservation of electronically stored information (ESI) with so many rapid developments in technology. Is your client using instant messaging platforms such as Slack, Teams, Gchat, or Jabber during the course of its day-to-day business? What about newly emerging artificial intelligence (AI) tools such as ChatGPT? Are you asking your client these questions and helping the client take the proper precautions to avoid spoliation?
The first order of business is to dust off your standard litigation hold form and make sure it has been updated to address platforms and technologies specific to your client and its line of work. (I recently came across a litigation hold referencing floppy disks and CD ROMs!) Second, make sure your client identifies the appropriate custodians for distribution of the hold notice, and help the client distribute—as well as track receipt and acknowledgment of—the memo. One federal district court found sanctions appropriate because the two principals who deleted and destroyed ESI were the types of persons likely to have relevant information even though they did not receive a litigation hold; the ESI at issue involved text messages; they owned their phones as personal property; and they were not named as defendants.
As counsel, it is also your responsibility to become familiar with your client’s document retention processes. Schedule a document retention call to go over in detail the various platforms your client is using, identify any auto-delete settings, and ensure that steps are taken to avoid automatic deletion of electronic data. It is important to take affirmative action in this regard and not to rely on your client’s self-collection measures. Counsel’s actions have been found sanctionable when counsel relied only on a principal’s statements and his self-collection, and failed to interview the custodian keeping counsel from identifying ESI, including Yahoo! Chats and emails, resulting in their destruction.
If you don’t understand how the technology works, find someone who does! To meet the obligation to become familiar with a client’s retention policy, counsel must speak with information technology personnel who can explain the system’s procedures and policies, one federal district court found.
It is also important to remember that this obligation is not just a box to check at the beginning of the litigation—it extends throughout the course of your case. As counsel, you should continue to monitor your client’s activity with respect to technology to avoid sanctions down the road. At least one federal court has permitted an adverse inference when the custodian switched to an encrypted messaging application to exchange sensitive information after becoming aware of a subpoena, finding that this action was intended to frustrate discovery.
Courts seem to apply these principles fairly consistently across technology platforms, whether email, text message, instant messaging, or other collaboration systems. One federal court recently discussed the fact that defendants should have known their settings deleted their Slack messages and that those messages contained relevant information. Another ordered default judgment against a party that failed to produce Google Workspace and Slack documents.
Although AI tools are so new that spoliation cases related to them do not appear to have made it through the court system yet, litigators should follow the above framework in connection with those tools. This may take some research, investigation, and deep conversations with your client’s information technology team to learn exactly how to preserve inputs and outputs from these tools, but that legwork is worth it to avoid sanctions. Courts—and your opposing counsel—will expect you to do so. “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject,” advises the comment to ABA Model Rule 1.1.
If this feels a little daunting, the key is to remember that courts generally understand that reasonable proactive efforts to preserve relevant information should be sufficient to avoid sanctions. Ultimately, you will not be required to preserve “every shred of paper, every e-mail or electronic document, and every backup tape.”
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