This is true even if your document retention policy calls for destruction of such records at that time.
Insurance defense litigation attorneys typically have no control over the preservation of evidence until they are retained. They customarily send out a preservation of evidence letter upon receipt of the file, but they have an affirmative obligation to do more.
Your duty to preserve evidence certainly attaches when you commence a lawsuit, if you are the plaintiff, or when you are served with the complaint, if you are a defendant.
If the client and attorney have conducted a reasonable and diligent search of all relevant evidence in the hands of their client early on, they can eliminate or at least minimize sanctions that may be imposed should opposing counsel establish spoliation of evidence.
Most metadata is pretty harmless — the author, time of creation, and so on. But, because it could potentially have recorded every change you made, including deletions, tracked changes, and comments, you need to be aware that it may contain information you wouldn't want others to be able to see.
Metadata removal tool or metadata scrubber is a type of privacy software built to protect the privacy of its users by removing potentially privacy-compromising metadata from files before they are shared with others, e.g., by sending them as e-mail attachments or by posting them on the Web.
The duty to preserve begins when litigation is reasonably foreseeable. Courts will consider the extent to which a party was on notice that litigation was likely and that the information would be relevant.
First, metadata raises significant issues concerning confidentiality for attorneys. Depending upon the law of the jurisdiction, an attorney who sends a document that she has created and edited without removing the metadata may be held to have waived the attorney–client privilege or work-product protection.
Removing or altering a copyright notice from an image or stripping metadata from the picture file is a violation of the DMCA.
You need to install a third-party app on your Android device to remove metadata from your photos. Here's how to do it: Go to the Google Play Store. Search for the “Photo Metadata Remover-Clear Exit Metadata” app here.
Preservation is the process of keeping physical items and electronically stored information (ESI) intact for discovery during litigation. To preserve potential evidence, parties must protect that information from being destroyed, deleted, lost, or altered in any way.
In many ways, preservation sets the foundation for the e-discovery process. It involves taking steps to ensure that potentially relevant data is not destroyed during the pendency of a legal or regulatory matter.
Destroying evidence is prohibited in both criminal and civil cases, including divorce or contract dispute litigation. Essentially, if a document or piece of physical evidence will be used in a trial or investigation of any kind, it is illegal to willfully destroy or conceal it.
Beyond what is immediately apparent to the eye, metadata is generated within the file and often contains information that could be privileged or confidential. Metadata is basically data about data – for example, the file's context, time and place of origin and record of revisions.
Metadata is information generated by a computer operating system or other software program that is associated with a particular electronic file. Simply put, metadata is data (or information) stored in electronic form about other data (or information) stored in electronic form.
Metadata is defined as the data providing information about one or more aspects of the data; it is used to summarize basic information about data which can make tracking and working with specific data easier. Some examples include: Means of creation of the data. Purpose of the data. Time and date of creation.
But, a lawyer’s duty to prevent evidence destruction does not end by hitting send on a legal hold email. Both in-house and outside counsel are responsible for overseeing the implementation of and compliance with legal holds.
Although the attorneys in the cases discussed above practiced with law firms, it is often in-house counsel that is at ground zero for a legal dispute and responsible for putting the legal hold wheels in motion. In fact, the duty to preserve evidence may extend beyond the walls of the company legal department.
IQS also claimed its attorneys were negligent for failing to properly advise it on the law surrounding document preservation.
As the cases below explain, legal hold best practices require lawyers to also monitor implementation of a legal hold. One law firm found out the hard way when it was sued for malpractice after its client lost a copyright infringement case because of evidence destruction.
But, a lawyer’s duty to prevent evidence destruction does not end by hitting send on a legal hold email. Both in-house and outside counsel are responsible for overseeing the implementation of and compliance with legal holds.
IQS moved for summary judgment in the malpractice case, and although the court withheld judgment on the attorneys’ negligence, it did note that the obligation to preserve evidence “runs first to counsel”. As a result attorneys must explain to clients the need to preserve documents relevant to the legal matter.
However, Rule 26 (b) (2) (B) provides that parties need not provide discovery of electronically stored information if it is “not reasonably accessible due to undue burden or cost.”. However, if a motion to compel is filed, the party must prove that the information is not reasonably accessible due to cost.
Businesses commonly discard or delete documents in the ordinary course of business, often pursuant to document retention/destruction policies. This practice, however, can conflict with a litigant's duty to preserve documents that are relevant to litigation. The duty to preserve evidence can even arise prior to the filing of a lawsuit.
In general, courts may impose non-dispositive sanctions without a showing of bad faith or willful conduct. See 103 Investors I, L.P. v. Square D Co. , 470 F.3d 985, 988 (10 th Cir. 2006) (imposing sanction of exclusion of evidence). However, for more serious sanctions, such as an evidentiary inference that the evidence would have been harmful, some courts have held that a showing of bad faith is required. See, e.g., Aramburu v. Boeing Co ., 112 F.3d 1398, 1407 (10th Cir.1997) (holding no adverse inference should arise where the destruction of a document resulted from mere negligence, because only bad faith would support an “inference of consciousness of a weak case”). Other courts have held that negligence is enough. Pace v. National R.R. Passenger Corp ., 291 F.Supp.2d 93, 98 (D.Conn. 2003), imposed sanction of an adverse inference where documents were destroyed negligently pre-litigation pursuant to a document retention policy, holding “the sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence.” Id. at 99 (quoting Residential Funding Corp. v. DeGeorge Financial Corp ., 306 F.3d 99, 108 (2 nd Cir. 2002)).
Even a well thought-out document retention policy, though helpful, will not necessarily save an inattentive business from such sanctions. Businesses must be vigilant and attentive to their duty to preserve relevant documents from the time that the possibility of litigation arises.
The duty to preserve evidence can even arise prior to the filing of a lawsuit. In this age of electronic documents, corporate counsel and managers can easily overlook some types of documents before and after a complaint is served.
Retention policies may be helpful, if reasonable, in avoiding sanctions for document destruction. However, they will not necessarily eliminate exposure and may even increase the risk of sanctions. Courts have imposed sanctions even while admitting that the document retention policy was legitimate under normal circumstances. It is the litigant’s responsibility to interrupt the retention policy if it would result in destruction of relevant documents. As Zubulake explained:
Metadata can help a party tell its story to the jury. However, metadata can also tell a story you don’t want the jury to hear, such as how dates and times of evidence do not match up with witness statements. At the end of the day, even inadvertent spoliation of metadata can ruin your entire case. So handle your metadata with care.
Bad things happen to good lawyers. When it comes to metadata, one of the worst things that could happen is the failure to properly preserve that metadata when it really matters, such as: (1) when metadata is required to be produced during discovery, (2) when metadata contains potentially exculpatory evidence, ...
Forensic and collection experts frequently create forensic image files to protect the metadata, both File System and Application. Think of an image file as a cocoon or a chrysalis. Digital forensic experts also use hardware devices called write blockers to ensure no data can be changed when accessing media.
Metadata is fragile and sometimes difficult to interpret. Create date does not always equate to the date the file was actually created. Moreover, the create date at the File System level may not match the create date in the Application itself. The author field can be changed with a few clicks of the mouse. So how can one be sure when ...
The bottom line is that tools do exist to assist with the preservation of metadata. It’s also true that if you know the pitfalls and what not to do or when to do it you are far ahead of the game.
As a result, the metadata has been spoliated, Defendant is unable to meet its production obligations , and Plaintiff is likely to seek monetary and nonmonetary sanctions against Defendant.
If the client and attorney have conducted a reasonable and diligent search of all relevant evidence in the hands of their client early on, they can eliminate or at least minimize sanctions that may be imposed should opposing counsel establish spoliation of evidence.
A person or entity has an obligation before litigation is filed to preserve all relevant evidence if they know or reasonably should know that they will be sued. Although most large corporate entities are aware of such obligations a small business owner or individual may not.
A Preservation of Evidence Letter is Not Enough to Protect an Attorney or Their Client From Consequences for Spoliation of Evidence. A person or entity has an obligation before litigation is filed to preserve all relevant evidence if they know or reasonably should know that they will be sued.
Document Retention and Destruction PoliciesIdentify and attach any and all versions of document/dataretention or destruction policies used by [opposing party] and identify documents or classes of documents thatwere subject to scheduled destruction.
Defendant corporation objects to interrogatory 3 because it is too broad in scope, the burden or expense ofthe proposed discovery outweighs its likely benefits, and it covers material that is protected by defendant cor-poration’s attorney-client privilege.
1) Plaintiff was intoxicated at the time of the accident and 2) plaintiff entered the road and thumbed her nosenot only at defendant driver, but also at the driver of a vehicle that passed seconds earlier.