Do you remember the awkward feeling explaining to a teacher why your homework was missing or an important assignment was incomplete? Do you still have dreams where you walk into math class only to realize it’s time for finals, but you haven’t been to class all semester? If you can relate to this discomfort, you have a sense for what it’s like as a lawyer trying to justify to a judge your client’s failure to preserve potentially relevant evidence in a legal dispute.
If you have been involved in a lawsuit, you know that the parties have a broad obligation to produce documents and other materials in response to their opponent’s discovery requests. But it may not be enough to say, “I gave them everything I had.” In most instances, once you have reason to believe your dispute may escalate to litigation, you have an affirmative duty to preserve potentially relevant evidence. Failure to do so can result in monetary penalties or, worse, the dismissal of your claims against the other side.
Most people realize that actively destroying or altering evidence is a no-no. But passive neglect can also get you into trouble if a court determines that you didn’t take sufficient steps in advance to identify and protect potentially relevant evidence. The best practice is to enforce a “Litigation Hold” as soon as you suspect that you have a situation that could evolve to a lawsuit. Give instructions to key employees (IT support in particular) to identify and locate relevant paper and electronic documents and to ensure that those documents are preserved in their current format. Don’t assume people understand this obligation. Be explicit in your instructions and follow-up as necessary to ensure compliance.
Nobody likes litigation. In addition to stress and expense, it can demand a lot of your time. As in most things, however, an ounce of prevention is worth a pound of cure. Take the time up front to ensure that you understand your responsibilities and that you are complying with them. If you thought a detention in high school was bad news, just imagine what it’s like coming from someone in a black robe holding a gavel.