Recent Decision Defines Standards of Care for Preserving Electronically Stored Information
"By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records—paper or electronic—and to search in the right places for those records, will inevitably result in the spoliation of evidence."
By Elleanor H. Chin and Randy Gainer
01.25.10
The above quote from U.S. District Judge Shira Scheindlin’s decision in Pension Committee of the University of Montreal Pension Plan et al. v. Banc of America Securities LLC is a warning to all parties involved in litigation and their counsel. The decision will provide a reference point for evaluating whether parties were reasonable in the steps they took to preserve evidence at the onset of litigation. Lawyers, compliance officers and litigation decision makers must understand the implications of this ruling. Judge Scheindlin states ignorance is not an excuse for negligent loss of data.
Key take-away points
First, a party should issue written instructions to preserve documents and electronically stored information as soon as it anticipates litigation. Second, the individuals accountable for implementing the litigation hold should have sufficient personal knowledge of the technical processes to determine whether they are appropriate, and truly likely, to capture all relevant information.
