Document Spoliation and It's Consenquences

During the document review process undertaken by eDiscovery firms it's sometimes revealed that some documents that need to be presented in court are missing. Many people tend to assume that the missing documents are on the defendants side, as the party on the receiving end of a civil lawsuit may have an interest in "losing" any documents that may serve to prove that they acted improperly. Courts tend to have a very dim view of defendants who are unable to present the needed data during the discovery process even if it is shown that the unavailability of the documents is not the result of willful and malicious destruction, but rather an error.

However, the plaintiff is also obliged to keep all discoverable documents, whether it is electronic data or paper documents. This is because some of the documents could be useful to the defense. A case that has been reported in legal news last year, the case involving 915 Broadway Associates LLC v. Paul, Hastings, Janofsky & Walker, LLP,  shows that quite clearly.

In this case, a litigation hold letter was issued in April of 2008 and sent to the main custodians of the data, in this case mainly consisting of email messages. Despite the request for a litigation hold, custodians were actively engaged in deleting emails that were relevant to the case. The court also found that the plaintiffs did not make a reasonable effort to put a halt to a process which automatically destroyed email messages. This was not a case where only one person in the organization made a mistake. The court determined that out of the 14 main custodians of the data, 9 had engaged in deleting documents relevant to the case. But it goes even further. Even after the defendants raised the issue that the spoliation of documents might be occurring, the plaintiff still kept deleting data. The defendant even took out an entire server used to store email and discarded it, without making any effort to preserve any of the data needed for the trial.

There are many types of electronic information used in an eDiscovery firm’s Document Review process and email messages are seen as one of the most common ones. According to the court, any party that has a reasonable expectation of being involved in litigation must act to put a litigation hold into place. The party is responsible for identifying any data subject to the hold, preserve it and also ensure that everyone in the organization, no matter what their role is, complies with the legal hold.

it's important that Plaintiffs and Defendants alike keep all documents when there is pending litigation. 

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