With the advent of the information age, evidence now routinely includes "smoking gun emails" and other electronically stored business records. The duty to preserve evidence to be used in a contested matter, such as litigation or governmental investigation, certainly pre-dates electronically stored information and electronic discovery. Many of the same rules apply as with physical documents; however, because of the unique nature of electronic communications, there are considerations peculiar to their preservation.
General Rules For Preserving Electronic Evidence
The duty to preserve electronic evidence arises from a variety of sources including procedural rules, regulations and case law. It is important to consult all sources in order to avoid negative consequences which may be severe.
Regulatory Agencies
Organizations that are subject to regulation by various governmental agencies often have more onerous preservation obligations, due to the nature of their industry. For example, companies that participate in the sale and exchange of securities must comply with record retention requirements of Securities and Exchange Commission Rules 17a-3 and 17a-4 (requiring all communications with clients to be maintained for periods of 3 and 6 years). This differs a bit from some requirements, as this is a proactive framework prescribed by regulation and not related to specific transactions or litigation.
Rules of Civil Procedure
A jurisdiction's rules of civil procedure, as well as the Federal Rules of Civil Procedure (FRCP), are more directly instructive with regard to evidence production in litigation. FRCP 26(a) and (b) set forth the guidelines for producing, both spontaneously and upon request, relevant and material evidence. Of course, implicit in the reasoning behind these rules is the idea that in order to produce a piece of evidence, one must first have preserved it.
The Sedona Principles
Another persuasive authority that provides some guidance on this issue is The Sedona Principles. Created by the Sedona Conference Working Group Series in 2002, the Sedona Principles provide best practices and recommendations for dealing with electronically stored information. They periodically release new editions of the guide to keep up with changing expectations in e-discovery and changes to the Federal Rules of Civil Procedure.
When Does the Duty to Preserve Arise?
In general, the duty to preserve electronically stored information (or any other potentially relevant evidence) attaches when a party reasonably foresees that the information may be relevant to future litigation. However, the practice of periodically disposing of documents in the usual course of business is also widely accepted.
The difficulty lies in determining what actions are not a part of the usual course of business - but rather are designed to undermine potential litigation.
What Documents Are Potentially Subject to Preservation Obligations?
Anything and everything. Because technology changes so quickly, it is entirely possible that any list that is meant to be exhaustive could easily become outdated in a matter of weeks. Rather, it might be best to focus on the content of the electronically stored information instead.
Can the Parties Make Their Own Rules?
Communication between parties on opposite sides of a dispute may also be persuasive in triggering a duty to preserve electronic evidence. The revised FRCP places a great deal of importance in "meet and confer" requirements - rules designed to require adverse parties work together to determine the parameters of their specific electronic discovery process.
For example, if a plaintiff in a product liability suit has already decided that it will not be pursuing a "defective design" strategy, that plaintiff might agree that certain electronically stored information need not be preserved even though the legal standards might typically suggest it should be.
Of course, it is ultimately the court that can approve or reject any proposed case management order or stipulation as to such an arrangement, but the language in the revised FRCP and in ABA Civil Discovery Standard 31 suggests that a great deal of weight is placed on agreements made between the two parties.
Are Non-Parties Required to Preserve Documents?
Witnesses may also be subject to preservation orders. It is within the court's discretion to bind non-parties to various forms of the duty to preserve when it is determined by the court that the necessity is present. A Preservation Notice issued to a non-party will generally precede the issuance of a subpoena, which makes formal legal demand for the production of needed items.