BY CHANCE DECKER
Kurt Mix’s nightmare probably won’t happen to you, but ignoring electronic discovery laws could cause you big problems in litigation.
You might have heard of Mr. Mix, the former BP engineer now facing federal obstruction of justice charges for deleting text messages about the 2010 Gulf oil spill. His nightmare is playing out in a federal court in New Orleans, and the government is not backing down.
Mr. Mix is accused of intentionally destroying evidence, which is not what most litigants do. But it is not unheard of for parties to accuse their opponents of the practice to gain an advantage in litigation. You can reduce your exposure to e-discovery violations, and (and sleep peacefully) by following a few simple steps.
- KNOW YOUR DATA STORAGE POLICIES. Most organizations with large data storage needs have automatic email and/or document deletion policies. All emails, text messages and other electronic message media not specifically stored in a particular folder on a company’s email server are automatically deleted once they reach a certain age. Reducung the amount of “junk” being stored makes it easier to locate and preserve relevant electronically stored information (“ESI”). In order to know what steps need to be taken to preserve ESI, know your company’s data storage and deletion policies.
- PRESERVE AT THE FIRST SIGN OF TROUBLE. In general, litigants are required to “preserve” relevant and “reasonably accessible” electronically stored information as soon as they become reasonably aware that such data could be relevant to litigation or a government investigation. This means you should preserve ESI even before a lawsuit is filed if you have reason to believe litigation might ensue. As soon as you become aware of potential litigation or investigations, suspend your document and email deletion policies, and save text messages or other communication media on any of your employees’ computers, laptops, blackberries, or other mobile devices. With e-discovery rules, you’re better safe than sorry.
- CONSULT WITH YOUR I.T. STAFF. They speak the e-discovery lingo, and can help identify where and how your ESI is stored and how it can be preserved. They can help ensure that no relevant ESI is destroyed after a duty to preserve arises. Knowledge is power, and your IT guys have it.
- EDUCATE EMPLOYEES. If your employees do not know they should preserve ESI, they will not do it. It is imperative that you educate your employees—from the roughnecks on the rigs to the executives in the office—on their data preservation duties before a problem arises. As soon as you learn that litigation or a government investigation may be on the horizon, someone should send a memo (a “litigation hold letter”) instructing employees to immediately begin preserving their ESI and instructing them on whom to contact for help.
- KNOW YOUR ROLE. Nominate individuals within the company whose job duties include various parts of the data preservation process. Likely candidates are in-house lawsyers, management-level employees, the records department, and the IT staff. Your lawyers can send out orders and help set policy for the preservation of ESI, your management level team can help make sure your employees are preserving their ESI, and your IT staff can make sure your information is properly stored and backed up. Having a team in place whose mambers know their roles will prevent things from slipping through the cracks and potentially relevant information from being destroyed.