EdLawConnect Blog

During the every day course of business, actual or potential disputes may arise that could lead to later legal action. In these situations, the preservation of electronically stored information can be overlooked.

In addition, litigation discovery rules provide that parties in litigation must take necessary measures to preserve electronic evidence. If appropriate measures are not taken in that regard, a party could be subject to evidence and issue sanctions, together with a counter-claim based on "spoliation of evidence."

If it appears that a matter may be contested and/or result in legal action, personnel responding to the matter should take electronic data preservation into account early in the response process. The IT department should be consulted on a confidential basis early on to obtain information about what electronic data may exist with respect to the matter, where the data is stored and in what format, whether the data is backed up and how often, and what steps need to be taken to preserve that data from unauthorized access or alteration.

Data is often backed up for only a limited time period, after which it is overwritten by successive system back-ups. For example, emails may only be kept going back six months, which could mean that needed emails may wind up getting deleted in cases that last a year or longer, which is not uncommon. Pertinent data may also be stored on media that responding personnel are not aware of, such as laptops, tablets, flash drives, and removable storage media. Efforts should be made to locate and preserve these forms of electronic data as well.

The question of what data to protect can involve complex technical and legal issues. Accordingly, persons responding to potential or actual disputes should consult closely with their IT staff and legal counsel early in the response process when determining the measures that need to be taken to preserve data.