Trial Attorney, Rob Shlachter from Stoll Berne in Portland, Oregon was recently featured as our expert speaker in the complimentary webinar, How To Protect Your Company From Business Litigation Obligations And Challenges. During the webinar he touched on several critical topics that can help a company stay prepared in case of business litigation. One key point was the importance of company preservation of electronically stored information.
In contrast to 20-30 years ago, most information is now stored electronically. The move to electronic data storage has had an effect on the volume of information; however, this increase does not change the obligation for businesses to preserve information.
The Timing Of Document Preservation
Businesses need to be aware that litigation, whether through arbitration or court, is very common now. When facing litigation it is necessary to begin immediate preservation practices with company documents and communications.
When does the obligation arise to preserve information?
According to the courts:
The obligation to preserve arises when a party should “reasonably know that evidence may be relevant to anticipated litigation.” Plaintiff should preserve immediately. Plaintiff’s burden may arise before defendant’s because plaintiff controls timing of litigation.
How would you “reasonably know that evidence might be relevant?”
If your business is anticipating litigation against another party then as soon as the decision has been made, or even contemplated, your business should start carefully preserving documents. Any electronic data or hard file document destruction policies should be halted for the time being.
Please note that companies are responsible for preserving specific critical business documents, regardless of litigation, at all times (see white paper The CFO’s Definititve Guide To Document Retention).
The reality is that preserving electronic data in an organized and protected way is a good practice regardless of litigation and all companies should be doing it.