During business litigation it is crucial to keep documents organized and accounted for in order to protect your business in court or arbitration. Robert Shlachter, named Best Lawyer for Bet-The-Company Litigation this year provides a list of 4 best practices surrounding electronic document preservation while going through or preparing for litigation.
1. Discuss preservation of documents with counsel. Counsel must oversee compliance with litigation hold and monitor efforts. Make sure the company and counsel are on the same page.
2. Broadcast the need to preserve to the appropriate people (IT staff, assistants, other key employees, etc.).
3. Under counsel’s supervision, send regular and frequent reminders of obligation to preserve. Use a model letter from counsel to send to employees.
4. Remember that the obligation to preserve extends to discovery in possession or control of third parties (possibly including vendors, consultants, etc.). Make sure you are just as communicative with your third party partners during litigation, they could be pulled into the proceedings too and may be important to your case.
Keep in mind: Your counsel should be proactive. Litigation hold letters that remind parties not to destroy/corrupt documents should be sent to all parties on both sides. Third party entities may be included in the case as well and should also be notified not to destroy any information.
THE TAKEAWAY: Communication is key! Clearly communicate expectations and legal obligations to employees, counsel, and third parties to ensure there are no mistakes due to lack of knowledge.