If you’ve been sued or it looks like a dispute might be heading to court, you are now on notice to stop deleting, destroying or purging any documents and materials that might be relevant to the dispute.
This same rule applies if you have sued or believe you may have to sue another party. This includes not only old-fashioned paper files but especially in this digital age, electronically stored information (ESI). That’s all your e-mails, texts, smart-phone storage, social network account materials – basically anything that’s in digital form and requires computer hardware and software to use. Be aware that you may have automatic delete-destroy settings for your e-mail and other electronic storage systems – stop the auto-delete now.
If your lawyer is involved in the pre-litigation or early litigation phases, you should receive a “Litigation Hold Notice” which will outline your duties to preserve information and how it should be done to stay on the right side of the law. If you don’t have a sophisticated IT department (and even if you do) you’re going to need serious guidance here.
The consequences for failing to do what you’re supposed to do can be dire – even when documents/ESI are destroyed innocently or inadvertently. One typical sanction results in an “adverse inference” instruction to the jury hearing your case, meaning the jury (or judge) is left to assume that the destroyed documents were probably harmful to your position and helpful to your opponents without any ability for you to counter that inference.
In plainer language, that means case over, and now it’s all about how many zeros you’re writing on that check to cover the judgment against your company.