The Gray Area of Preservation

We’ve already discussed the duty to preserve under Rule 37(e). Discovery includes the preservation, search, analysis, and production of information that might play a role in litigation. The Zubulake standard states: “A party has a duty to preserve all evidence, including electronically stored information (“ESI”) that it knows, or should know, is relevant to any present or future litigation.”¹ That means that every business must retain every piece of information on the slight chance that it could be used against or for them in future litigation; however, not everyone completely understands what encompasses eDiscovery. It seems elementary. Things such as text messages, e-mails, and medical/business records are obviously discoverable. But what about what you’re not necessary thinking about? One of the consequences of poor eDiscovery practices and poor decision-making include insufficient insight about what is happening within their organization while good eDiscovery practices result in lower direct costs to the organization by reducing people-hours that are invested in managing corporate risk.

While eDiscovery is recommended, there are a plethora of important issues that could arise during the preservation of eDiscovery without professional help that an organization has to keep in mind. Not only could a failure to preserve ESI lead to sanctions but there is still a gray area of what needs to be preserved. Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC (court issued sanctions against parties for their gross negligence in not adequately preserving ESI).² Some of these include:³

• Backup tapes should be maintained 
  • In the landmark case Zubulake v. UBS Warburg LLC, an employer had duty to preserve backup tapes containing e-mails.⁴  The plaintiff primarily sued her employer for gender discrimination and repeatedly maintained that the evidence she needed to prove her case exists in e-mails sent to many of the organization’s employees and stored only on their computer system.⁵  During discovery, the employer revealed all the information was deleted and stored on backup tapes; however, the backup tapes were missing.⁶  The court stated that although companies do not have to keep all backup tapes, once a party reasonably anticipates litigation from a specific, identifiable individual, it must suspend its routine document retention/destruction policy, including backup tapes.⁷  Here, the consequence of destroying the backup tapes included the employer bearing the cost of re-deposing certain witnesses.⁸  Although in this case, the employee could not demonstrate that the lost evidence would have supported her claims, the court noted if it would have, the appropriate action would be to give an adverse inference instruction to the jury.⁹
• Keeping social media content in its original form is difficult to supervise, but pivotal in eDiscovery
  • • Social media content can be altered very easily; therefore, attorneys should tread lightly when advising clients of how to collect information from these platforms. Sanctions are not the only consequence that may flow from the loss of this content. “According to the Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association, ‘[a] lawyer may advise a client as to what content may be maintained or made non-public on her social media account, including advising on changing her privacy and/or security settings. A lawyer may also advise a client as to what content may be ‘taken down’ or removed, whether posted by the client or someone else. However, the lawyer must be cognizant of preservation obligations applicable to the client and/or matter ….’”¹⁰  Lawyers should err on the side of caution. In the event a lawyer accidentally advises a client to take down or remove a matter off of social media and the court rules it was necessary for trial, the court could order an attorney to pay damages for spoliation of evidence and require the client to pay damages as well.¹¹  Attorneys can also be reported to the Bar for violating the Code of Professional Responsibility.¹²
• Metadata may need to be produced
  • In the 2016 case Gilbert v. Highland Hosp., the court held that production of metadata was critical to discovery.¹³  In this medical malpractice action, the plaintiff filed a motion to compel the production of the audit trail of the decedent’s medical records in the form of metadata or “data about data.”¹⁴  Both Federal and New York require that a medical provider must maintain electronic record(s) that maintains an audit trail.¹⁵  The court reasoned that audit trails are system metadata and that is relevant if the authenticity of a document is questioned or “if establishing who received that information and when is important to the claims or defenses of a party.”¹⁶  While most metadata is not relevant, attorneys must be cognizant of when it is.¹⁷  Here, the consequence was the court ordered for a motion to compel the metadata.¹⁸

Most importantly, eDiscovery must be managed competently. Organizations should seek out professional help and be proactive in their endeavors to organize eDiscovery. It improves the efficiency of litigation for the court and both parties involved.

For more information on how to effectively organize and produce all the necessary eDiscovery for your next case, contact LITeGATION’s award-winning team at info@litegation.com.

1. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). 
2. Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 592 F. Supp. 2d 608, 643 (S.D.N.Y. 2009).
3. Key Issues in eDiscovery: An Osterman Research White Paper (Sept, 2012), https://www.globanet.com/sites/default/files/resources/Key%20Issues%20in%20eDiscovery%20-%20Globanet.pdf
4. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 215 (S.D.N.Y. 2003).
5. Id.
6. Id.
7.  Id. at 218.
8.  Id. at 222.
9. Id.
10.  § 27:26.Discovery of social media sites, 3 N.Y.Prac., Com. Litig. in New York State Courts § 27:26 (4th ed.) (citing Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association, Guideline No. 5.A: Removing Existing Social Media Information, p. 22 (May 11, 2017) (internal citations omitted), available at www.nysba.org/SocialMediaGuidelines17).
11.  Allied Concrete Co. v. Lester, 736 S.E.2d. 699, 703 (2013) (court ordered attorney to pay $542,000 for spoliation of evidence and required the client to pay $180,000 after attorney instructed client to delete photographs from his Facebook)
12.  Lester v Allied Concrete Co., No. CL08-150, 2011 WL 8956003 (Va. Cir. Ct. Sep. 01, 2011)
13. Gilbert v. Highland Hosp., 31 N.Y.S.3d 397, 398 (N.Y. Sup. Ct. 2016).
14. Id.
15. Id.
16.  Id. at 400.
17. Id.
18.  Id. at 398