Is your company or law firm in the midst of a litigation hold audit and now facing potential spoliation sanctions for failure to effectively implement a litigation hold or for allegations of intentional destruction of relevant electronically stored information (ESI)? Did an employee of your firm inadvertently delete potentially relevant information after litigation has begun? Did you suffer an equipment or hardware failure of storage media containing potentially discoverable information rendering it lost? Forensicon has years of experience helping companies facing challenges such as these and more.
Spoliation of electronic evidence is a legal concept that pertains to purposeful or negligence relating to ensure electronic evidence has been adequately preserved. When a computer user or parties to litigation engage in intentional efforts to hide, obscure, manipulate or destroy information that is relevant to discovery in a legal proceeding, the court may issue sanctions or may issue a spoliation negative inference.
There are many circumstances where despite counsel and company leadership notifying staff of the need to preserve relevant data in anticipation of litigation, staff download and install popular scrub software tools in an effort to clean their own computers of potentially embarrassing information that might become seen by others. The usage of these tools by employees can cause great heartache to a company and need to be addressed effectively and discovered quickly so that counsel has time to formulate the litigation response strategy.
Popular scrub software tools employees sometimes use include:
- Evidence Eliminator
- MariusSoft’s Disk Scrubber
- Privacy Guardian
- And many others…
Persons who engage in efforts to utilize scrub software such as CCleaner, Evidence Eliminator, or other tools such as manually initiating a disk defragmentation shortly following the deletion of potentially relevant file types may be subject, in some instances, to severe criminal and legal sanctions. Criminal statues pertaining to intentional deletion of data beyond discovery vary by state.
In Illinois, Rule 219(c) of the Illinois Supreme Court Rules stipulates sanctions for failure to exercise a party’s duty to preserve important and crucial evidence to the main issues relevant to a case. The failure of a party to litigation to implement an effective litigation hold may result in negligent spoliation claims. In the case Jones v. Bremen High School District 228, 2010 WL 2106640 Northern District of Illinois, May 25th, 2010, plaintiff Jones’ EEOC claim alleging discrimination in the workplace, the court found that the defendant failed to implement an effective litigation hold. While some data was eventually recovered from some of the key individuals involved in the allegations, there were clear gaps in the volume of emails produced, which led the court to issue sanctions. The court deemed the defendant’s efforts were reckless and grossly negligent and as a result, issued spoliation sanctions. The court furthermore ruled that it is unreasonable to rely upon employees to take steps on their own to implement the litigation hold. Parties looking to assert or protect themselves against claims of spoliation should consider the following key points pertaining to a party’s duty to preserve data in anticipation of current or potential litigation:
- Reasonable anticipation of litigation - Once a party has a trigger event that a reasonable person would know might lead to the anticipation of the need to determine what transpired pertaining to the record of electronic evidence, a party needs to take proactive steps to ensure crucial data isn’t discarded and is preserved.
- Demonstrable good faith and timely action to ensure preservation takes place - Ensuring that IT is aware of the need to preserve data and cease routine destruction of emails and other documents needs to closely follow the initial trigger event that would lead a reasonable person to anticipate litigation. Waiting a year or more after litigation has begun and allowing for computers used by key custodians to be discarded without taking simple cost effective steps such as quarantining the computers or making a forensic image of the computer is not an acceptable excuse in many instances in defending claims of electronically stored evidence spoliation.
- Counsel supervised search of the preserved evidence - If the parties perform self-collection of production during discovery, the court is more likely to issue spoliation sanctions for mistakes and omissions than if the search and culling of data is performed with counsel supervision by an independent party.
Parties who are facing potential spoliation sanctions should consider contacting Forensicon. Forensicon has provided computer forensics consulting services for law firms and companies who have been charged with spoliation of evidence. In the case, Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (Northern District of Oklahoma, July 29th, 2009), Forensicon was hired to attempt to recover data that was accidentally deleted following the commencement of litigation. The court sanctioned the defendant a token $2,500 amount to help conduct continuing legal education seminars on the topic of implementing litigation holds. Because Manpower, Inc. engaged Forensicon to assist with mitigation of the damages caused by the negligent litigation hold implementation and the loss of potentially relevant data, the sanctions issued by the court were minimal relative to other case matters where the courts have issued spoliation sanctions.
If you would like assistance with ensuring your litigation hold is implemented correctly or help defending allegations of spoliation of evidence, please contact Forensicon today for a complimentary consultation at 888-427-5667. Our consultants are experienced expert witnesses that can assist you with developing your legal response strategy and ensuring that you and your clients have done everything possible to avoid severe sanctions relating to accidental or negligent loss of data.